Trade dress e concorrência desleal: a latente necessidade de positivação da proteção ao conjunto-imagem no cenário comercial e concorrencial brasileiro

Abstract

This research was conducted with the aim of promoting a greater understanding of the trade dress institute, which is little known in the legal field due to its novelty, as well as due to its foreign origin. The research has as its central problem concerning the legal gap, that is, the lack of positive recognition of the aforementioned institute and, consequently, its recurrent violation through the practice of the crime of unfair competition. The Brazilian legal scenario lacks the standardization regarding the legal institute of trade dress; so that the legal source, although precarious, of protection for the institute is found in judicial decisions and in the jurisprudence of the Brazilian higher courts. The disputes presented in the body of the work aim to shed light on the understanding of how judges (courts a quo and ad quem) from Minas Gerais establish parameters for the application of the trade dress institute; a cut was made so that all the jurisprudential research was carried out on the website of the Court of Justice of Minas Gerais. Based on this study, it was possible to conclude that the legal gap regarding the trade dress institute has no justification for existing, as well as favoring companies that violate the trade dress. Brazilian judges, specifically from the state of Minas Gerais, have highlighted in several decisions the fact that they judge the violation or not of an institute without having the specific and concrete legal basis for it.