Protection of intellectual property has been assuming a new shape due to social, economic and technological evolution. The originality aspects of brands and other intangible property aspects have been increasingly exploited by the industry, and therefore require different protection, so as to guarantee healthy and beneficial competition for all.

Trade dress is an example of the evolution of law in the field of intangible property all over the world, being a set of sensory elements that distinguish a certain product from the others, making it unmistakable and subject to exclusivity and protection.

On the other hand, liberty in the economic activities must be ensured, based on the constitutional principles of free enterprise and free competition. In this context, courts in Brazil have often decided for the mitigation of protection via trade dress, thus not acknowledging the application of this concept in cases where there is a "market trend", that is, when a strong similarity is found in all products of the kind under analysis, so that such elements can no longer be used to distinguish a product from another.

How is it possible then to reconcile the required protection of trade dress with the constitutional guarantee of free competition? After all, the distinctive character of products must be protected, and at the same time, competition and the freedom of the industry, commerce and economy must be encouraged.

In Brazil, the answer is to be found in article 195 of Law 9279/96, which characterizes as unfair competition the imitation of other parties' expressions or signs to gain undue advantages, subject to penalties in both civil and criminal spheres.

Thus, in one way, market trend may limit the characterization of exclusivity and the trade dress protection. On the other hand, market trend cannot be used as a shield to protect unfair competition acts, when the intention of imitating a product and diverting another's clients is clear.

In this context, protection via trade dress can only be discarded if the subject matter involves elements that are actually common to all products that are on the market, and which lack any unique and distinctive feature of a specific product. However, if colors, shape and arrangement of images in the product form a unique set capable of being distinguished from the others, not being present as a trend in the market, then the protection via trade dress, based on the provisions prohibiting unfair competition, is applicable.

The conclusion is that there is no problem in having similarity between products, in the context of market trends. The similarity, in this case, is legal and covered by the constitutional principles of free enterprise and free competition. On the other hand, if the similarity is not common in the market, is found only in certain products, is capable of confusing consumers in their choice and, consequently, of diverting another's clients, protection of trade dress must prevail over the market trend, punishing the unfair competitor.

The question is then, what makes a characteristic of the product a market trend or a unique element that should demand protection.

The answer to this question depends on a case-by-case analysis, and shall involve not only a technical analysis of the characteristics of the products, but mainly a customer survey, in order to evaluate what kind of impact such characteristics have over the customers. By having such approach, the constitutional principles of free enterprise and free competition will be safeguarded, while the protection to intellectual property will remain.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.