An Empirical Approach to Trade Dress Protection and Competition (AHRC PEC)
In the UK, EU, and the US, firms can claim an exclusive trademark right in relation to features of the products, such as the shape, color, packaging, design of a product, or the items used in a service. Examples are Tiffany’s blue jewelry box and T-Mobile’s magenta store decoration. These features/appearance of products or services are called trade dress. However, trademark protection for some types of trade dress might hinder competition to a greater extent than traditional word or logo marks as it affects the product itself rather than only its branding. This research attempts to suggest an empirical approach to help the courts decide when a trade dress might hinder the competition if granted a trademark right.
Particularly, the research focuses on a subcategory of trade dress – single-color trademarks. It attempts to develop an empirical approach combining data mining and consumer experiment to measure the market power of single-color trademarks. Based on the empirical approach, it provides courts with a more reliable and predictable factual basis for the assessment of possible anti-competitiveness of single-color trademarks.
- Xiaoren Wang, Trade Dress Protection and Its Impact on Competition: An Attempt at an Empirical Approach, The Trademark Reporter, Vol. 112, No. 3, 2022.
- Xiaoren Wang, presentation on Welfare-Reducing Trade Dress Monopolies: an Empirical Approach, 2022 EPIP, Cambridge UK, September 2022 (forthcoming).