Trade Dress no direito brasileiro: a insuficiência da proteção conferida pelo instituto da concorrência desleal e a necessidade de tutela jurídica específica

Abstract

In this following work, it is analysed the protection of trade dress through the application of devices designed to repress unfair competition, investigating the extent to which such application has been effective to protect the rights of entrepreneurs and consumers. Based on the assumption that the trade dress doesn’t have specific legal provisions and that its protection is given by means of a rule that is too embracing, a bibliographical search was carried out, in order to know, through the reading of books, scientific articles, journals, monographs, dissertations, theses and periodicals, how the doctrine conceptualizes, classifies and disposes on the protection of the set-image, passing, secondly, on a qualitative approach, to verify, through some judicial decisions of first and second instance in lawsuits in which the judicial protection of the institute was sought, as the Judiciary has effected the reception of the definition by the doctrine. Finally, using the inductive method, it is concluded that the Judiciary still does not apply, in a harmonic way, the requirements pointed out by the doctrine, which, in clear detriment to legal certainty and protected rights, has resulted in opposing and conflicting decisions, in order to highlight the need for a specific legal provision for the trade dress.