The legal protection of get-up (trade dress)

Abstract

'Ugliness does not sell ' The above quote is without any doubt as blunt as it gets, yet who would dare oppose it? It is after all too easy pointing out that supply and demand has gone a long way and increasing standards of living in many countries have morphed the consumer into possibly the choosiest creature alive. The modem customer is, metaphorically speaking a prince when it comes to purchasing goods and services- and he knows it. He requires standards, has rights, musters choice and is too often infatuated by appearances, being more concerned with brands than necessities. But what is a brand? Taken in its widest perspective, it has been opined that a 'brand' is more than just a way to distinguish a product from another. There is now widespread acceptance that brands are essential in generating and sustaining the financial performance of businesses because rather than just increasing the preference of customers for buying the company's products and services, they affect other audiences to do business with the company. The benefits of a strong brand are not just increased demand and distribution, but also include lower costs of material, personnel, debt, and equity. In this context, some academics and practitioners use the terms reputation and brand inter-changeably. This wider concept of brand therefore includes trade dress, since goods of a particular get-up just as much proclaim their origin as if they had a name attached to them. Having this perspective in mind, in distinguishing their products, entrepreneurs are always searching for ways to entice the customer, appeal and stand out from amidst the common hoard. This is done especially by relying on distinctive get-up as a tool in communicating why their businesses are uniquely able to satisfy customer needs. In this scenario, creativity, perception and deception latch in subtle but inevitable ways and as always, the task of weighing and balancing the ingredients of this exquisite but delicate recipe is left to the law. Hence, the law must ensure that the consumer's choice is not misled, and that the human effort and monetary expense which the entrepreneur invested in creating a distinctive and intelligent get-up, is not wasted or diluted by free riders who would otherwise appropriate themselves of his work. At the same time however, for the sake of the free market, the law must be careful not to indulge in overprotection which would ultimately lead to the proverbial landslide.