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

Abstract

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.