Recommended Reading: Anthony Fletcher, "The Paradox of Aesthetic Functionality"
In his article, "The Paradox of Aesthetic Functionality," 104 Trademark Reporter 731 (May-June 2014), Anthony L. Fletcher ponders the meaning of "functionality" in the trademark context. He focuses particularly on the concept of "defensive aesthetic functionality," following its "development" from Pagliero, the "cornerstone of modern aesthetic functionality doctrine," through the hockey patch case, Job's Daughters, and most recently the Betty Boop brouhaha.
Mr. Fletcher thinks, as does Professor McCarthy, that "the notion of a defensive type of aesthetic functionality is bad law, poor policy, and provides no coherent rules." The real question in these cases, he believes, is simply whether there is likelihood of confusion as to source. Mr. Fletcher posits that Job's Daughters got it wrong, while the hockey patch case and Betty Boop reached the right result. In short, Learned Hand nailed it when he wrote: "unless the borrower's use is so foreign to the owner's as to insure against any identification of the two, it is unlawful." Jewelry, clothing, and other displays of a team or organization's insignia are often marketed by the mark owners, so how, Mr. Fletcher asks, can the alleged infinger's use - the alleged infringer claiming the defense - be foreign to the owner's use?
Whenever and whatever Tony Fletcher writes, I recommend that you read it. I always do.
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TTABlog note: I thank The Trademark Reporter for granting permission to provide a link to this article, which is Copyright © 2014 the International Trademark Association and reprinted with permission from The Trademark Reporter®, 104 TMR 731 (2014).
Text Copyright John L. Welch 2014.