پوشش تجارت: اهمیت فزاینده شکل باستانی در عین حال جدید حفاظت از مالکیت معنوی

Trade dress is a means of identifying and differentiating the product of a vendor by visual (and very occasionally auditory) cues of a form other than written language. The use of trade dress certainly goes back into pre-Roman times, and was very likely used well before then. Trade dress remains important in societies both highly literate and substantially illiterate, and in some respects has increased in importance in both.

Trade dress provides a means for identifying the proprietor of a product. Whereas a conventional trademark usually includes a vocalizable visual component (i.e., printed words) a trade dress does not. Trade dress is a form of brand that is akin to the marking of livestock to define it as someone's property and under the Lanham Act in the United States and the Paris Convention internationally, can be protected by registry as a trademark. As the world market has become more globalized, trade dress has come forth anew as a quick identifier of particular brands or makes of goods and services. The promotion of products in new markets using trade dress as a familiarizing tool makes it possible to enter and develop the market in locations with both high and low levels of literacy with greater facility. This paper examines current trends in the creation and use of distinctive trade dress under both circumstances.

Today, U.S. courts seem to be turning away from the liberal treatment formerly given claimants seeking protection for new trade dress forms. Despite this, trade dress protection remains a valuable asset in the field of intellectual property rights. The ultimate objective of the courts remains to protect intellectual property owners, consumers, and other purchasers of goods and services from unfair market activities. The significance of legal actions and court decisions made in U.S. courts in trade dress is that other nations that are signatories of the Paris Convention are bound by those decisions if they or their products “have a presence” in the U.S.—in all their activities in the U.S. and in any activities in their own domestic market that might be construed as violations of the rights of a U.S. owner of a particular form of trade dress. Entrepreneurs should be aware of the existence of this class of intellectual property right and recognize that it does have value where other alternatives are not available or have failed.