Abstract
The functionality doctrine in trademark law bars protection for some, but not all, source-identifying product features—so-called trade dress—that contribute to a product’s functional performance. Despite the doctrine’s lengthy history, its critical role in promoting intellectual property policies, and the considerable attention devoted to it in recent decades, courts and commentators still disagree about what functionality means, the reasons why functional marks should not be protected, and how far the functionality bar should extend. This confusion is due largely to a lack of clarity and rigor at the normative level. This article seeks to remedy the deficiency. It traces the history of the functionality doctrine, critically analyzes its policy foundations, and outlines an analytical approach for designing optimal functionality rules.
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Text Copyright John L. Welch 2015.
On page 32, Prof. Bone writes, "However, the Court says nothing at all about where these free copying principles come from."
ReplyDeleteThe Court need not say anything. Copying is the default—just ask the inventors of the wheel, the nail, and the arrowhead. You can't use the law to "give" someone the right to copy, you can only use the law to "take" away that default position.