Chapter 11: Trade dress
When I teach trade dress to my students, I ask them to picture a small robin’s egg blue colored box with a white satin ribbon. Generally, the description evokes a smile from the female students while many of the male students look a little bit baffled. The color and configuration of the packaging I described from Tiffany & Co. creates a specific association and expectation in the minds of the students just as it does with its recipients. Imagine the recipient’s disappointment to receive such a box, only to discover something other than Tiffany’s jewelry inside. Thus, in the same way that trademarks (like ‘Tiffany’s’) can acquire goodwill and serve to signify the source of a good or service to consumers, trade dress (like the blue box with a white ribbon) can serve this same function. Trade dress is much more than the packaging from Tiffany’s, however. Trade dress can include the shape and distinctive features of a bottle or even colorful restaurant décor. This chapter will explore all of these facets of trade dress while comparing the common law system of the United States with the primarily civil law traditions of the European Union. It will first examine the relevant trade dress provisions from international instruments. Next, it will compare the registration systems and other respective means of protecting trade dress in the US and the EU.
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