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Weinberg on the Functionality Doctrine in Trademark Law

By Lawrence Solum

Harold R. Weinberg (University of Kentucky - College of Law) has posted An Alternate Functionality Reality (Journal of Intellectual Property Law, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court last addressed trade dress law?s functionality doctrine in TrafFix Devices, Inc. v. Marketing Displays, Inc. decided in 2001. This article applies content analysis to data from post-TrafFix functionality cases to provide insights concerning the functionality doctrine. It emphasizes data from cases concerning motions for summary judgment and preliminary injunction. The analysis employs two conceptual constructs: a ?useful/aesthetic continuum? and ?mixed-character? design features. The article also considers data in light of a ?two-bar mandate? and two principles: ?useful-scarcity? and ?aesthetic-abundance.? It concludes with observations concerning the post-TrafFix functionality doctrine and suggestions for improving its judicial administration. These include skepticism concerning claims that the overall appearance of a combination of design features is aesthetic or nonfunctional.

Full post as published by Legal Theory Blog on June 03, 2010 (boomark / email).