Trade dress protection: beyond inherent distinctiveness
Protecting a product's overall appearance or trade dress against imitators
is an attractive proposition available in both the United States and the European
Union. However, while consumers regard logos or even packaging shapes as an
indication of the product's trade origin, they tend to consider the shape of
the product itself as solely an indication of its nature. This, Fernando Gonzales
of Hammonds explains, led the courts to conclude that trade dress cannot be
inherently distinctive and, thus, other criteria should be considered to assess
whether it can be protected under trademark law.
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