Counterfeits, Copying and Class

43 Pages Posted: 11 Dec 2012

See all articles by Ann Bartow

Ann Bartow

Franklin Pierce Center for IP at UNH Law

Date Written: May 1, 2012


Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) 'knockoffs,' in which design attributes have been copied but trademarks have not. Toward that end, as a normative matter the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible for Lanham Act protection. With enough advertising, any product feature can acquire distinctiveness. Only the assertive deployment of functionality bars by courts can prevent the illegitimate and costly construction of trademark-based product monopolies.

The purported trademark related harms that stem from the production and distribution of noncounterfeit knockoffs are, in reality, the effects of legitimate competition based on attributes such as price, quality, consumer appeal, and availability, with which trademark law should not interfere. Repressing or illegalizing knockoffs illegitimately prevents lower income people from procuring and enjoying goods with aesthetic attributes that are not properly monopolized through trademark law, and probably perversely increases the demand for counterfeit items.

Keywords: trademark, tradedress, likelihood of confusion, counterfeit, Lanham Act, knockoff, intellectual property, class, copying

JEL Classification: K1, K10, K19

Suggested Citation

Bartow, Ann, Counterfeits, Copying and Class (May 1, 2012). Houston Law Review, Vol. 48, 2012. Available at SSRN:

Ann Bartow (Contact Author)

Franklin Pierce Center for IP at UNH Law ( email )

Two White Street
Concord, NH 03301
United States

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