Trade Dress

PONTIFICIA UNIVERSIDAD CATÓLICA DEL ECUADOR
FACULTAD DE JURISPRUDENCIA
ANALYSIS AND DRAFTING LEGAL TEXTS
NAME: Rafael Guerrero
DATE: December 3th, 2012
SUBJECT: Trade Dress

1. GENERAL VIEWThe mark has reached a very important place in the world of business because it identifies the product and distinguishes it from the competition. In some enterprises mark means the principal assetso they protect it using the registration in the IEPI.
The same importance has the external image or clothing of a product, best known as a trade dress, a set of characteristics that identify aproduct and let the consumer recognize it.
For example, if you say “CONVERSE” immediately an image of sneakers (a comfortable and simple design of shoes for basketball, made famous by Chuck Taylor) comesin your mind. But it is not the mark; it is the set of particular characteristics of product: color, shape, design, etc. This group of elements is the trade dress, and it has a distinctive capacityin the mind of consumer.
2. DEFINITION
Trade dress is the non-functional physical detail and design of a product or its packaging, which indicates or identifies the product's source and distinguishesit from the products of others. Trade dress includes color schemes, textures, sizes, designs, shapes, and placements of words, graphics, and decorations on a product or its packaging. A trade dressis non-functional if, taken as a whole, the collection of trade dress elements is not essential to the product's use or does not affect the cost or quality of the product even though certain particularelements of the trade dress may be functional.

3. LEGAL PROTECTION
Section 43(a) Lanham Act
Any person who, (…) uses in commerce any word, term, name, symbol, or device, or any combinationthereof, or any false designation of origin, false or misleading description or representation of fact,, which is likely to cause confusion, or to cause mistake, or to deceive [...] as to the origin,...