The Supreme Court and Trade Dress - A Short Comment

Download or read book The Supreme Court and Trade Dress - A Short Comment written by William P. Kratzke and published by . This book was released on 2011 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: In the space of nine years, the United States Supreme Court decided four cases concerning trade dress and functionality. The Court broadened the doctrine of functionality - and narrowed trade dress protection for product configuration (not packaging) trade dress. The Court quite correctly concluded that a product configuration, while potentially a source identifier for consumers, is not to be treated as if it were a more ordinary trademark for the simple reason that consumers - the people for whom trademark law exists rather than the competitors who serve them - do not expect such trade dress to serve an identificatory or informational function, i.e., to function as a trademark. An important consequence of this distinction is that inconsistent characteristics of traditional trademarks are not necessarily inconsistent in the context of product configuration. Inherent distinctiveness does not preclude the possibility that a product feature mark might be functional, that its use by competitors might not be likely to confuse consumers, or that its distinctiveness has no identificatory and informational power and so is not a valid trademark. If a product feature is desirable for any reason other than for its identificatory and informational power, it is functional. Non-patented, non-copyrighted, unrecognized product feature trade dress should not put competitors at any disadvantage. According consumers a paramount place in the competitive market economy requires that § 43(a) of the Lanham Act not be a surrogate for patent or copyright protection.