Cognitive and Aesthetic Functionality in Trademark Law

57 Pages Posted: 22 Feb 2015 Last revised: 29 Mar 2016

Justin Hughes

Loyola Law School Los Angeles

Date Written: February 20, 2015

Abstract

This article explores trademark law’s controversial and confusing aesthetic functionality doctrine, a doctrine that has been largely unexamined in the legal literature. The article argues that the most convincing cases for aesthetic functionality aren’t really about aesthetics, but concern cognitive and psychological responses in consumers that come from evolution or acculturation. At the same time, much of the instability of aesthetic functionality case law comes from the doctrine being an unrecognized battleground in the shift from trademarks being purely indicators of source to trademarks being valuable intangibles in and of themselves. Based on these observations, the Article proposes that aesthetic functionality makes the most sense – and would be a more stable, helpful doctrinal tool in trademark law – if it is limited to situations in which the consumer preference at issue comes from cognitive, perceptual, or aesthetic biases that are widespread among consumers before the trademark owner began its own marketing efforts. The Article explores how this insight lines up with most of the aesthetic functionality case law and prevents the doctrine from being used to undermine modern marketing, branding, and trademark realities.

Keywords: trademark, functionality, trade dress, aesthetics, aesthetic functionality, psychology

Suggested Citation

Hughes, Justin, Cognitive and Aesthetic Functionality in Trademark Law (February 20, 2015). 36 Cardozo Law Review 1227 (2015); Loyola-LA Legal Studies Paper No. 2015-07. Available at SSRN: https://ssrn.com/abstract=2567833

Justin Hughes (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8108 (Phone)

HOME PAGE: http://www.justinhughes.net

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