Legal Protection of Trade Dress: Comparative Analysis

Abstract

This research consisted of search and analysis of the relevant legal framework for regulation of trade dress protection through trademark law and review of the respective elaborated court practice, which specify and shed a light on the application of the two main requirements for trade dress protection – distinctiveness and non-functionality criterions. The research also envisages the comparison between the trade dress protection across different jurisdictions, namely the USA, the EU and Ukraine. The scope of research includes the trade dress protection in the USA since the trade dress protection originates from there, while the EU and Ukraine were analysed to find out how the concept introduced by the Common law can be utilised in countries of Continental law. The research, in particular, includes analysis of the theoretical background by means of considering the opinions on the matter of trade dress protection expressed by famous scholars and practitioners. This was intended to find out whether there are any topical issues in the realm of trade dress protection and which problems may respectively arise while applying this regime. The findings of the research provided a possibility to conclude that trade dress protection is stipulated in the same manner across different jurisdictions, however with some specificities depending on jurisdiction.