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Trade Dress
June 2, 2021

A world leading French company in the industry of distilled beverages and wine, owner of a famous Swedish vodka brand, faced ‘trade dress’ imitation of its product’s image by unauthorized third parties.

The French National Court issued a judicial order declaring that the regional counterfeit manufacturer of vodka stop selling their products using bottling shapes and labeling identical to or near identical to the Swedish vodka.

By imitating the shape of the bottle and other image related elements of the original vodka, damage was incurred by the original vodka company. The damage to their reputation with their consumers, as well as the loss of distinctiveness lessened the distinguishable value of their beverage mark, as a consequence.

What is trade dress?

It is a set of characteristics that, visual or sensorially, aggregated to a product or establishment, enables the consumer to identify its origin. However, it is made up of not one but diverse elements such as: mark, packaging shape and color of product, typographic elements, advertising (slogans), smells, textures, standard labeling etc.

The protection of trade dress, therefore, is carried out by various legal organs, among which is trademark and industrial design registration. This is the reason why there is not just one specific and unique way to protect holders’ trademark rights in Brazil.

Why is this case important?

The judge examining this case understood that there was no doubt that the vodkas of the defendant company benefited from the deliberate imitation, even though the expert findings concluded that the identified imitation and parasitic exploitation were not enough to confuse consumers. According to the judge, the imitation added value to the product, through design, sophistication and style obtained by imitating the Swedish vodka’s trade dress; considering that the original manufacturer made huge investments in research and development in packaging which is well-known worldwide.