The Federal Civil and Commercial Court of Appeals (Division I) once again ruled on a highly relevant issue in intellectual property: the protection of trade dress, or the distinctive appearance of products. In Docket No. 3778/2019 (“Laboratorios Felipe Bajer v. Laboratorios Monserrat y otro s/ cese de uso de marca”), the court analyzed the similarity between the medicines “Farm X” (Bajer) and “Calcusan X” (Monserrat and Eclair), whose packaging displayed a notably similar aesthetic.
The court confirmed that trade dress protection does not depend on trademark registration or on the artistic originality of the packaging. What matters is whether the overall visual configuration (colors, typography, design, and layout) allows consumers to identify the product’s commercial origin and whether its imitation may create an improper association in the market. The expert report showed that the Calcusan X packaging reproduced central elements of the Farm X design, which justified ordering the cessation of the imitation of the overall visual appearance.
Additionally, the court framed the conduct within the range of unfair competition, considering that the reproduction of the packaging was objectively suitable of generating confusion and taking advantage of a competitor’s commercial positioning. In this regard, it recalled that Article 10 bis of the Paris Convention prohibits any commercial act suitable of creating confusion as to the commercial origin of products.
The judges also clarified that the use of the letter “X” is a generic element in the pharmaceutical sector and cannot be monopolized. Therefore, the defendant may continue to use it in its denomination, but not replicate the distinctive appearance of a competing product.
This case confirms a clear trend in Argentine case law: trademark law and unfair competition rules operate in a complementary manner to protect the visual identity of products.
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