European approaches to «trade dress» protection and the possibility of their implementation in Ukraine

ir implementation in Ukraine. The concept of «trade dress» and such terms as «registered design», «brand im-age» («brand image»), «advertising campaign concept» («ad campaign concept») were analyzed. It is substantiated that the concept of «trade dress» is the broadest in meaning.It is established that the commercial design covers the unique shape of the product, color and decorative ele-ments, ie in the case of proving its originality, you can protect the commercial design on the basis of trademark law. The comparison of protection on the basis of a trademark and «trade dress» is made. Examples of trade dress protection in the food industry, pharmaceutical and automotive industries have been studied.The differences between trade dress and design patent are analyzed. It is established that the difference be-tween a design patent and a trade dress is that in order to obtain a patent, the design must be new and in no case a variant of the existing one. In addition, a comparative analysis of the concepts of «trade dress» and industrial design. It was found that in the EU countries increasingly use the category of «trade dress» in resolving disputes, even though such a concept is not inherent in the countries of the continental legal system, including Austria, Germany, France and others.It is substantiated that the concept of «trade dress» should be understood as a commercial image of the product (or service), which allows to distinguish the manufacturer of the product (or service provider) and includes various elements (including design, shape, materials, colors, etc.) that distinguish goods or services. It is argued that in the process of recoding the Central Committee of Ukraine it is important to improve the institutions of intellectual prop-erty law, so that the protection of producers of goods in line with modern trends and European approaches. That is why it is necessary to include the concept of «trade dress» in the draft of the new Civil Code of Ukraine.

Design Patent: A Unique Tool for Design Protection

Design patent is deemed as a superb competitive tool in the design industry. The author of this study delineates a co-opetition type of relationship of design patent with patent, trademark, and copyright to assist designers to construct a correct core concept of design patent quickly. The investigator proposed five key judgment factors based on infringement identification, and they are (1) literal infringement, (2) doctrine of equivalence, (3) points of novelty test, (4) prosecution history estoppel, and (5) prior art limitation. They can help designers clearly identify the legal right and scope of their design. Lastly, the author proposed three new competitive tools for a design patent, and they are (1) partial design patent, (2) computer-generated icons and graphic user interface, and (3) derivative design patent. Using these three new design patent tools will enable designers to effectively expand their design patent rights and maximize design benefits for their companies.