Functionality Screens

Fashion's Function in Intellectual Property Law

“…Instead of copyright law protecting only solely expressive features of a work and excluding completely functional and dual-nature aspects, the Court's opinion will prevent copyright from attaching only to purely functional features of the work. 207 Given the Court's statutory interpretation, it never had to think carefully about the arguments we have raised above. Because the Court lowered the bar for copyright claimants to protect functional aspects of their designs, it did not significantly interrogate whether the features of the uniform designs that influenced perceptions of wearers' bodies were dual-nature.…”

“…In addition, when decisionmakers compare a plaintiff's work with an allegedly infringing work, copyright law demands that they filter out from their analysis aspects of the plaintiff's work that are functional. 211 For example, when courts have dealt with other highly functional works like computer software, they have excluded from the infringement comparison those aspects of the plaintiffs' works that improved a program's efficiency. 212 Accordingly, when decisionmakers are asked to compare garments like Varsity's to allegedly infringing copies like Star Athletica's, they should be instructed to ignore aspects of the plaintiff's work that contribute to its function, including dual-nature features like the ones discussed above.…”

“…To ensure that trademark law is not used to provide claimants with an undue competitive advantage, the law excludes functional trademarks and trade dress from protection. 224 Trademark law enables owners to take advantage of the value of their reputations for producing high-quality products, but it seeks to prevent them from using trademarks to gain advantages unrelated to their reputation. 225 This unfair advantage could result if the mark extended to cover useful product features that competitors were then prevented from producing.…”

“…264 The courts have furthermore not understood this requirement to mean that entire designs are necessarily rendered unprotectable for functionality; after all, the "article[s] of manufacture" that design patent law anticipates will be protected will typically have conventionally functional uses. 265 Instead, courts understand the ornamentality/nonfunctionality requirement to signify that a "design patent only protects the novel, ornamental features of the patented design." 266 What "functional" means in the context of design patent law seems less stringent than in copyright and trademark law.…”

Patents and the First Amendment

“…Even though computer programs are covered by copyright, copyright law struggles with its treatment of software because of its functional qualities-the Supreme Court has long held that functional subject matter belongs in the patent system. 64 Patent law, on the other hand, struggles with software because of its expressive, or at least communicative, formulations. 65 Copyright law is not equipped to deal with functional subject matter; patent law is not equipped to deal with expressive subject matter.…”