IDS debates relevant issues on trade dress violations

IDS debates relevant issues on trade dress violations

Last Tuesday (6), the Dannemann Siemsen Institute (IDS) held another IDS Agenda, this time with the aim of debating relevant issues involving trade dress violations. The event discussed how the issue has been dealt with globally and what its specificities are in Brazil.

The event was opened by IDS academic coordinator Patrícia Porto and moderated by Dannemann Siemsen partner Rafaela Borges Walter Carneiro. As guests, we welcomed l Bence Bozóki, senior IP counsel at Mars, who spoke about trade dress violations from a global perspective. We also welcomed Mauro Ivan C. Ribeiro dos Santos, partner at Dannemann Siemsen, who gave his perspective on the specificities of the issue in Brazil.

Rafaela began her moderation by defining trade dress based on the concept put forward by the International Trademark Association (INTA), which describes it as the general commercial image (appearance and non-visual elements) of a product or service that indicates or identifies the origin of the product or service and distinguishes it from others. He then put the first question of the panel to Bence Bozóki, asking him about the importance of a product’s trade dress when it comes to consumer choice in the market.

At this point, Bozóki began his presentation by mentioning recent research carried out in the UK which shows that, in terms of the behavioral psychology of consumers in market environments, trade dress is often more decisive for the purchase of a product or service than its brand. Still exploring the research data, the speaker commented that the perception of a product’s quality increases if its packaging is associated with that of a highly recognized product. Here, he stressed the importance of companies creating distinctive packaging, preventing their brand from being diluted over time.

Next, the speaker commented more specifically on how trade dress copies behave in relation to market-leading products. He explained that the first letters of the brand name are usually copied, as are color combinations and distinctive signs. In his opinion, the aim of infringing brands is to achieve a change in economic behavior by transferring images and values from a more famous brand to a less established one, manipulating consumers. Bozóki also pointed out that, globally, the strategy being used to prevent trade dress infringements is precisely to protect the general perception, beyond the individual elements that cause the association of a certain product, as well as investing in marketing campaigns that emphasize these characteristics.

From another angle, Mauro Ivan began his presentation by commenting on introductory aspects and essential elements when it comes to the trade dress of products and services, such as shapes, designs, colors, materials, decoration, sounds and smells. He then explained how trade dress is protected under Brazilian law, giving an overview of the commercial sectors in the country that are most involved in trade dress litigation. The speaker then presented some judicial precedents on the subject, focusing his analysis on decisions handed down by the Superior Court of Justice (STJ).

From this perspective, Mauro Ivan identified two relevant elements for the Brazilian courts when analyzing trade dress infringement: (i) due to the complexity of trade dress, technical expertise, with the opinion of an expert on the subject, is necessary to resolve legal disputes involving the matter; and (ii) each case must be analyzed individually and the particularities of this institute make it difficult to establish general rules for analyzing trade dress infringement.

The recordings will be made available on the IDS website via the link in our bio.

Note: For quick release, this English version is provided by automated translation without human review.