In some European “lucky” countries unregistered trademarks are protected by the laws on unfair competition. However, to enforce them the proprietors need to start a court action which is not only very costly and time consuming but also difficult to win especially when the unregistered trademark to enforce is a trade dress. In fact, the unfair competition provisions are applicable only if the trade dress is distinctive and if there is a risk of confusion on the part of the public.
These requirements are difficult to meet in case of look-alikes, where generally a totally different trademark is used to the very end of avoiding such risk of confusion. Protecting packaging more easily is however possible by registering distinctive labels and packaging as trademarks and the shape of products as 3D marks if they have acquired distinctiveness on the market. In fact, well-known trademarks are protected against similar packaging, even in the absence of a risk of confusion, as long as use of the look-alike takes unfair advantage of, or damages, the reputation of the well-known mark, which commonly happens with look-alikes. Furthermore, registering the packaging of your product as a design eliminates both problems of proving distinctiveness of the packaging and of demonstrating the risk of confusion. The basic requirement of design infringement is in fact the similarity of the overall impression.