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The Trade Dress, a crack open in the protection of industrial
property rights
The inventiveness of the infringers of industrial
property rights has no limits and the actions of these
persons have extended not only to the field of traditional
trademarks, but also, as of late, to the elements that
allow for the presentation of the product or service to
the consumer.
Well aware of these actions, the holders of trademarks
are becoming more and more concerned about obtaining registration
for the outward presentation of their products and services,
which is also known as the trade dress.
The trade dress is a group of elements that are a part
of the general outward appearance of a given product or
of the characteristics of the establishments wherein a
given service is being rendered.
The elements to be protected may include the form, the
color, the graphs, the texts, and the layout of the elements
on a label.
In the case of commercial establishments, it is possible
to protect the group of elements that are a part of the
outward appearance of the presentation of the service
such as the uniforms, the layout of elements, the shape
of buildings, etc. Just as a trademark, the trade dress
must be distinctive in order for the same to be eligible
for registration.
An important thing for any company is to register the
trade dresses of its principal products and services:
by extending the protection to those elements that more
often than not the consumer perceives in a more direct
fashion than the trade market itself, the company is preventing
a form of infringement from occurring which consists of
presenting different trademarks under similar trade dresses.
As a conclusion, if your product or service is being presented
under a very distinctive but unregistered trade dress,
an enormous void may exist in point of the protection
of your rights and consequently there is the chance that
you become the next victim of the increasingly inventive
infringers.
Example
of trade dress registration applications filed in Colombia
The added value that
we offer at Prieto, Carrizosa & Patiño springs
forth from being pioneers in defending the concept of
Trade Dress before the local Superintendence of Industry
and Trade.
As a matter of fact, in a recent case, our Firm was
able to secure an order for the carrying out of special
24-hrs precautionary remedies that were requested as
a means to prevent greater harm from being inflicted
to one of our clients. This harm derived from the use
of certain elements pertaining to the client’s
product packaging, which were replicated on a third
party’s product packaging.
Please feel free to get in touch with María
Fernanda Espitia should you need any assistance relating
to the above. |
