The protection of trade dress has become increasingly clouded in recent years. A forcethe functionality doctrinehas been implemented to police this intersection between patent and trademark law. Unfortunately, courts have struggled to arrive at a common definition of functionality. This comment examines the functionality doctrine and proposes a four-factor decay test as a uniform approach to functionality. The test asks the following questions regarding a product feature: (1) Is it essential to the use or purpose of the article?; (2) Does it have any current market effect on the cost or quality of the article?; (3) Is there a significant hindrance of competition?; and (4) Are there no truly equivalent alternatives? Applying a half-life methodology, affirmative answers to the above questions yield 1, .5, .25, and .125 probability values respectively, which are then integrated. If the total value is greater than .5, the product feature is deemed functional.
Conditioning Functionality: Untangling the Divergent Strands of Argument Evidenced by Recent Case Law and Commentary ,
10 Marq. Intellectual Property L. Rev. 515
Available at: http://scholarship.law.marquette.edu/iplr/vol10/iss3/3