Trade dress is the characteristics of the visual appearance of a product or service. It consists of all the elements, such as the shape, design, colors, that are used to “package” the product or service and make it distinct, identifying the goods, as trademark does. A package of a product can have a specific trade dress, but also a chain of fast-food restaurant does.
Although Brazilian law does not have specific protection of trade dress, neither a mechanism for registering the trade dress, it can be protected by the Brazilian Industrial Property Law (Law # 9279/96) under the repression of unfair competition.
Companies that have their trade dress violated by others can file a lawsuit to refrain the offender from violating the trade dress of its products or serves and claim material and moral damages.
Since trade dress involves a series of unlimited elements than can make a product or service distinct, this type claim requires an expert examination to analyze if the defendant use of similar elements constitute a trade dress violation and unfair competition.
This is the understanding of Brazilian Superior Court of Justice. On an important trial in February 2019 the Superior Court of Justice established that trade dress violation claims requires examination from experts to evaluate market aspects, consumer habits, marketing technics, the degree of attention of consumers on specific market niches as well as the elements used to present the product or service.
In the case law, Superior Court of Justice annulled a sentence that has denied the expert examination request and analyzed the case by merely comparing photographs.
This is and important precedent of trade dress infringement lawsuits in Brazil and has settled a relevant understanding on how this kind of lawsuit must be handled.
Lawyer Author of the Comment: Pedro Eurico de Souza Cruz Teixeira
“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.”