not registered and a third party imitates said trade dress, the previous user of the trade dress must register it to have an exclusive right over it. If a third party comes and imitates someone’s trade dress this should be considered an act of unlawful competition, an act of confusion, forbidden by Article 311 CPI. This is not a problem related to trademarks. But the Portuguese law does the opposite. It is treated as a trademark issue. The legislator claims that there is a trademark (a virtual one) consisting of the packaging and labeling of the product and demands that the user applies for the register of a new trademark in order to protect that presentation. Article 233, nº2 CPI determines that those interested in refusing to register the trademarks referred to in this article may only intervene in the respective proceedings after they have applied to register their trademark with the elements of the external appearance referred to in paragraph 1.93 But if the interested party can obtain the same result under Article 232, nº1, (h) CPI, what’s the interest of Article 233? The trademark ought to be refused (h) when it is recognizable that the applicant intends to compete unfairly or that unfair competition is possible regardless of the applicant’s intention.94/95 Trade dress, an underdeveloped area of law, with a historically generous interpretation, may be the perfect solution for the protection of culinary creations96. “Plating” of dishes may come under one of three categories of trade dress: “plating” as product packaging, considering food as a product and the unique “plating” as its packaging (though this may imply issues when the plating itself is suitable to be eaten); “plating” as a tertium quid, meaning that the food presentation ought to form a part of a separate category, similar to restaurant décor, because it is part of the restaurant experience but it is not the main product or, in a strict sense, its packaging; signature dishes as service trademarks. When a dish is inherently distinctive and serves as a source indicator for a restaurant, as 93 Article 233 (Imitation of unregistered packaging or labelling) “1 - Registration shall also be refused of trademarks which, under the terms of article 238(1)(b) and (c), constitute a reproduction or imitation of a certain external aspect, namely of packaging or labels, with the respective shape, colour and arrangement of sayings, medals, rewards and other elements, demonstrably used by others in their registered trademarks. 2 - Those interested in refusing to register the trademarks referred to in this article may only intervene in the respective proceedings after they have applied to register their trademark with the elements of the external appearance referred to in the previous paragraph”. 94 GONÇALVES, L. M. COUTO strongly criticizes the Portuguese solution, in Manual de Direito Industrial, cit., pp. 285-286; in the same sense, SILVA, P. SOUSA e, Direito Industrial, cit., pp. 289-290. 95 Logotypes, rewards, geographical indications and designations of origin, when registered, may also play a very important role in protecting culinary creations by industrial property rights. With more detail, see ROCHA, “The Mondrian Cake…” cit., p. 177, footnote 47. 96 In this sense, STRAUS, N., “Trade Dress Protection for Cuisine: Monetizing Creativity in low-IP Industry”, UCLA Law Review, 60, 2012, pp.184-260, especially p. 242. 255 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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