Protection of intellectual property has been assuming a new shape due to social, economic and technological evolution. The originality aspects of brands and other intangible property aspects have been increasingly exploited by the industry, and therefore require different protection, so as to guarantee healthy and beneficial competition for all.
Trade dress is an example of the evolution of law in the field of intangible property all over the world, being a set of sensory elements that distinguish a certain product from the others, making it unmistakable and subject to exclusivity and protection.
On the other hand, liberty in the economic activities must be ensured, based on the constitutional principles of free enterprise and free competition. In this context, courts in Brazil have often decided for the mitigation of protection via trade dress, thus not acknowledging the application of this concept in cases where there is a "market trend", that is, when a strong similarity is found in all products of the kind under analysis, so that such elements can no longer be used to distinguish a product from another.
How is it possible then to reconcile the required protection of trade dress with the constitutional guarantee of free competition? After all, the distinctive character of products must be protected, and at the same time, competition and the freedom of the industry, commerce and economy must be encouraged.
In Brazil, the answer is to be found in article 195 of Law 9279/96, which characterizes as unfair competition the imitation of other parties' expressions or signs to gain undue advantages, subject to penalties in both civil and criminal spheres.
Thus, in one way, market trend may limit the characterization of exclusivity and the trade dress protection. On the other hand, market trend cannot be used as a shield to protect unfair competition acts, when the intention of imitating a product and diverting another's clients is clear.
In this context, protection via trade dress can only be discarded if the subject matter involves...