A proteção do Instituto Trade Dress no Brasil: as possibilidades de regulação no contexto do direito da moda

Abstract

Given the current competitive landscape experienced by brands and companies, it is essential for entrepreneurs and creators to stand out through graphic-visual elements, including trade dress, a set of characteristics capable of identifying a particular product or service. In Brazil, due to the absence of legal provisions regulating the protection of trade dress, which is not subject to trademark registration, it falls to the Judiciary to establish parameters for its protection. This means that judges use non-unanimous rules to resolve conflicts. Thus, this work analyzes the limits and challenges for the protection of trade dress within the Brazilian normative context, especially based on judicial precedents related to Fashion Law. From this perspective, it is crucial to understand how industrial property seeks to protect fashion creations in the absence of trade dress regulation, with special emphasis on current legislation and the defense against unfair competition. Additionally, this study examines the limits and possibilities of protecting the trade dress institute in Brazil, particularly based on the positions and challenges already faced by Brazilian courts. To achieve this, the deductive study method is used, aiming to synthesize the problems faced, considering the constant growth of the fashion sector, in order to find a common denominator for resolving cases of trade dress protection violations. Finally, practical-doctrinal examples are presented, along with practical observations in specific cases, regarding the violation of the institute within Fashion Law and its respective resolutions by the Brazilian Judiciary, through indirect documentation, using bibliographic research as well as official documents such as laws, judgments, and decisions. In conclusion, it was found that, although Brazilian courts are ruling on cases related to trade dress and fashion law, it is crucial that specific laws and normative instructions be created to broaden the protection of such institutes.