Protecting the Form but not the Function: Is U.S. Law Ready for a New Model High Tech?

Posted: 1 May 2012

See all articles by Dana Beldiman

Dana Beldiman

UC Law, San Francisco; Bucerius Law School

Date Written: 2004


One of the areas of intellectual property whose rapid expansion in recent years risks producing negative collateral effects is protection of product design. Pressured by systemic demands for stronger protection mechanisms, judicial decisions have broadened the scope of protection, in particular in the area of trade dress law. Many of these decisions, however, are rendered in an immature doctrinal environment, characterized by the use of imprecisely defined concepts and doctrines that are incongruous with the needs of the intellectual property to be protected. This incongruity between problem and solution can create precedents that threaten the balance between free competition and protection. That balance can be restored, however, by limiting trade dress protection and implementing specialized design protection mechanisms. Legislative models for more closely tailored protection mechanisms exist, and should be considered.

Suggested Citation

Beldiman, Dana and Beldiman, Dana, Protecting the Form but not the Function: Is U.S. Law Ready for a New Model High Tech? (2004). Santa Clara Computer and High Technology Law Journal, Vol. 20, No. 2, 2004, Available at SSRN:

Dana Beldiman (Contact Author)

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Bucerius Law School ( email )

Jungiusstr. 6
Hamburg, 20355

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics