Faux Amis in Design Law

105 Trademark Rep. 1455 (2015)

6 Pages Posted: 4 Jan 2016 Last revised: 12 Jul 2023

Date Written: January 4, 2016


In the United States, designs can be protected under all three main intellectual property (IP) regimes. There are some key terms of art that are used in all three regimes but do not mean the same thing in each. This essay focuses on two of these faux amis, "ornamental" and "functional." It demonstrates that these terms do not mean the same thing in trademark and design patent law and that this is causing problematic confusion. It proposes that, going forward, we stop using the term "ornamental" in trademark law and stop using the term "functional" in design patent law.

Keywords: design patents, trademarks, ornamental, ornamentality, functional, functionality, design law, faux amis

Suggested Citation

Burstein, Sarah, Faux Amis in Design Law (January 4, 2016). 105 Trademark Rep. 1455 (2015), Available at SSRN: https://ssrn.com/abstract=2710661

Sarah Burstein (Contact Author)

Suffolk University Law School

120 Tremont Street
Boston, MA 02108-4977
United States

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