Nowadays, companies no longer think only about the quality of their products and / or services, but also about the whole set of elements that form the company’s identity and differentiate it from competitors.
This “set” is called the trade-dress, which is the set of identifying elements of a company, product or service. It is, in short, the global set of external and aesthetic characteristics of the product, service or establishment able to individualize them.
What often happens is the copy or imitation of this set or even some elements that characterize the company’s product / service by competitors in order to confuse the consumer, alienating the clientele or even damaging the company’s reputation in the market.
How to proceed when your company is a victim of trade-dress violation?
In Brazil, protection for the trade dress itself is not provided for in specific legislation, the Brazilian legal diplomas being concerned exclusively with the protection of the individual recordable elements (like trademarks).
The jurisprudence, however, has been in charge of combating possible violations of the image set.
This protection has been a guarantee based on Article 5, item XXIX, of the Brazilian Federal Constitution:
“The law will grant authors of industrial inventions temporary privilege for their use, as well as protection for industrial creations, trademark ownership, company names and other distinctive signs, in view of the social interest and the technological and economic development of the country;”
In addition to constitutional protection, the defense of the institute has also caused the incidence of rules of the Civil Code, the Consumer and the Industrial Property Law (unfair competition).
The article 195, item III, of the Industrial Property Law defines unfair competition as a crime:
Article 195. A crime of unfair competition is committed by anyone who:
III – applies fraudulent means, to divert, for its own or someone else’s benefit, the clientele of others;
Brazilian jurisprudence has been acting mainly by applying unfair competition to cases involving trade-dress. A Judge at the Rio Grande do Sul Court of Justice once said “In addition to the loss of profit, the improper use of someone else’s trade dress can cause an impact on the trademark’s objective honor, which as a result of such action, has put the quality of your product to your customers, which can damage your good reputation in the market ”The central point for recognizing, in court, as an act of unfair competition the sale of products or services with a trade dress similar to that of others is the verification of the possibility of confusion that such conduct may generate for consumers, through the association product or service that is unfair to the original.
Lawyer Author of the Comment: Laís Iamauchi de Araujo
Headline:The protection of the trade-dress in brazilian law
“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”
“Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.”