Commentary: Faux Amis in Design Law

Abstract

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