Trademark Functionality Reexamined

Abstract

The functionality doctrine in trademark law bars protection for some, but not all, sourceidentifying product features-so-called trade dress-that contribute to a product's functional performance. Despite the doctrine's lengthy history, its critical role in promoting intellectual property policies, and the considerable attention devoted to it in recent decades, courts and commentators still disagree about what functionality means, the reasons why functional marks should not be protected, and how far the functionality bar should extend. This confusion is due largely to a lack of clarity and rigor at the normative level. This article seeks to remedy the deficiency. It traces the history of the functionality doctrine, critically analyzes its policy foundations, and outlines an analytical approach for designing optimal functionality rules.

Recognition of the Distinctiveness of Non-traditional Trademarks

“…The first step in determining whether a trademark has acquired distinctiveness is the act of "use". However, the "use" of non-traditional trademarks has its own peculiarities as compared to traditional trademarks [5].…”

Fashion's Function in Intellectual Property Law

“…Moreover, allowing mark owners to protect the functional aspects of their designs can have anticompetitive effects as it does in copyright law. 218 Like copyrights, trademarks do not undergo the substantial ex ante evaluation that patents do to ensure that they are new and nonobvious. Like copyrights, trademarks can, but need not, be registered to be protected.…”