Pennsylvania Bar July 11: Ken Germain on Product Design Trade Dress Functionality and Unconstitutionality
Prof. Ken Germain, noted trademark expert, will present his (heretical?) views on product configuration trade dress law in a discussion entitled: "Product Design Trade Dress: Exposing the Aesthetic Functionality and Unconstitutionality of 'Convex Arcs' (aka 'Son of TrafFix')." Time and place: The CLE Conference Center – Breakfast from 8:30 – 9:00 am; CLE from 9:00 – 10:00 am, Wanamaker Bldg., 10th Floor, Ste. 1010, Philadelphia, PA. Details here.
Professor Tom McCarthy, undisputed academic guru of all things affecting U.S. trademark law, proclaims: “Aesthetic functionality’ is an oxymoron. Ornamental aesthetic designs are the antithesis of utilitarian designs.... “Aesthetic functionality,’ may be a theory in search of a rationale."
Professor Ken Germain — who was an expert witness in the celebrated TrafFix case (U.S. 2001) and is always willing to espouse provocative positions (if he believes in them) — is confident that Prof. McCarthy is wrong about aesthetic functionality’s illegitimacy. Mr. Germain also strongly decries reliance upon multiple legal theories to protect the very same “design,” specifically rejecting the protection of expired design-patented “configurations” under trademark/trade dress law. In fact, he explains that preemption of one aspect of IP law (trademark/trade dress law) by another aspect of IP law (design patent law) is a Constitutional mandate.