Trademark Functionality Reexamined

Journal of Legal Analysis, Forthcoming

U of Texas Law, Law and Econ Research Paper No. E557

65 Pages Posted: 28 May 2015 Last revised: 2 Jun 2015

See all articles by Robert G. Bone

Robert G. Bone

University of Texas School of Law

Date Written: May 28, 2015

Abstract

The functionality doctrine in trademark law bars protection for some, but not all, source-identifying product features — so-called trade dress — that contribute to a product’s functional performance. Despite the doctrine’s lengthy history, its critical role in promoting intellectual property policies, and the considerable attention devoted to it in recent decades, courts and commentators still disagree about what functionality means, the reasons why functional marks should not be protected, and how far the functionality bar should extend. This confusion is due largely to a lack of clarity and rigor at the normative level. This article seeks to remedy the deficiency. It traces the history of the functionality doctrine, critically analyzes its policy foundations, and outlines an analytical approach for designing optimal functionality rules.

Note: This is the edited, as-published version of the article “Trademark Functionality Revisited and Revised” that I posted to the working paper series when it was in early draft form.

Keywords: : trademark law, functionality doctrine, trademark history, TrafFix Devices, trademark policy, intellectual property, economics of trademark law

JEL Classification: K00, K11, K19, K29

Suggested Citation

Bone, Robert G., Trademark Functionality Reexamined (May 28, 2015). Journal of Legal Analysis, Forthcoming , U of Texas Law, Law and Econ Research Paper No. E557, Available at SSRN: https://ssrn.com/abstract=2611636

Robert G. Bone (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-5562 (Phone)
512-471-6988 (Fax)

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