trademark and unfair comp. boston college law school january 23, 2008 trade dress, functionality
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Trademark and Unfair Comp.
Boston College Law School
January 23, 2008
Trade Dress, Functionality
Trade Dress & Product DesignTrade Dress Product Design
Trade Dress Protection
• Lanham Act § 43(a)– Any person who shall affix, apply, … or use in
connection with any goods or services … a false designation of origin … , and shall cause such goods or services to enter into commerce … shall be liable to a civil action … .
Two Pesos v. Taco Cabana505 U.S. 763 (1992)
Taco Cabana Trade Dress
Two Pesos v. Taco Cabana505 U.S. 763 (1992)
• Findings of the District Court– Taco Cabana has an identifiable trade dress– The trade dress is non-functional– The trade dress is inherently distinctive– The trade dress has not acquired secondary
meaning
Inherently Distinctive?
Inherently Distinctive?
Policy Considerations
Distinctiveness
Generic Descriptive Inherently Distinctive
Low
HighPotential forConfusion
Harm toCompetition
Trade Dress,Trademarks
ProductDesign
Example - Review
Functionality
• Lanham Act § 2(e)(5)– No trademark … shall be refused registration
… unless it --• (e) Consists of a mark which, … (5) comprises any
matter that, as a whole, is functional
TrafFix v. MDI121 S. Ct. 1255 (2001)
Functionality
• When is something “functional”?– Essential to the use or purpose of the article, or– Affects the cost or quality of the product
• Overall policy consideration– Exclusive use of the feature would put
competitors at a significant non-reputation-related disadvantage
Eco v. Honeywell
Aesthetic Functionality
Au-Tomotive Gold v. VW
Hypos
Hypos
In re Gibson Guitar Corp.
Functionality - Summary
• When is something “functional”?– Essential to the use or purpose of the article– Affects the cost or quality of the product
• Factors to consider– Existence of utility patent– Statements in advertising– Existence of alternative designs– Cost of manufacturing
Hypothetical
Hypothetical
Patent, Copyright, Trademark
Patent Copyright
TrademarkFunctionality
Doctrine
Useful ArticleDoctrine
ProductDesign
FictionalCharacters
ComputerSoftware
Administrative Details
• Next Assignment– Read III.A & B
• Use in Commerce
• Priority and Concurrent Use
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