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.
Harold R. Weinberg,
An Alternate Functionality Reality,
J. Intell. Prop. L.
Available at: http://digitalcommons.law.uga.edu/jipl/vol17/iss2/4
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