An Alternate Approach to Channeling?

24 Pages Posted: 12 Nov 2009 Last revised: 25 Nov 2009

Date Written: 2009


Intellectual property law has developed a variety of doctrines to police the boundaries between various forms of protection. Courts and scholars alike overwhelmingly conceive of these doctrines in terms of the nature of the objects of protection. The functionality doctrine in trademark law, for example, defines the boundary between trademark and patent law by identifying and refusing trademark protection to features that play a functional role in a product’s performance. Likewise, the useful article doctrine works at the boundary of copyright and patent law to identify elements of an article’s design that are dictated by function and to channel protection of those features to the patent system. These are important doctrinal tools, and they play valuable roles in the overall intellectual property system. These channeling doctrines, however, reflect an incomplete sense of the interplay between various modes of intellectual property protection. Because they focus on subject matter, the existing channeling doctrines only prevent parties from claiming multiple forms of protection for particular features. They therefore ignore firms’ ability to capture similar economic benefits by claiming different intellectual property rights for various features of a product or service. This Article considers how, if at all, this use of intellectual property rights as alternative appropriation mechanisms ought to inform the boundaries of the various intellectual property regimes. In particular, it considers whether alternative channeling doctrines — ones that would force claimants to elect among types of protection even when those forms apply to different features — are appropriate.

Keywords: intellectual property, patent, copyright, trademark, incentive

Suggested Citation

McKenna, Mark P., An Alternate Approach to Channeling? (2009). William & Mary Law Review, Vol. 51, 2009; Notre Dame Legal Studies Paper No. 09-44. Available at SSRN:

Mark P. McKenna (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
(574) 631-9258 (Phone)

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