Professor Cotter discusses the inherent conflict between patent and trademark law in product configuration - a species of trade dress - that is disclosed within the text of a utility patent or on which the claims of a utility patent read. Commentators have disagreed as to whether or not such disclosed features should enter the public domain upon expiration of the patent, regardless of whether they would otherwise qualify for trademark protection. Professor Cotter illustrates why the conventional belief that patents are monopolies is, in general, false. He then provides a brief overview of relevant trademark law principles. Professor next turns his attention to a discussion of relevant caselaw. Finally, he argues that as long as protection against trademark infringement is afforded to distinctive and nonfunctional trade dress generally, no compelling reason exists to deny protection to such trade dress that has been disclosed in a patent, as it would not result in the extension or creation of a monopoly.
Thomas F. Cotter,
Is This Conflict Really Necessary?: Resolving an Ostensible Conflict Between Patent Law and Federal Trademark Law,
3 Marq. Intellectual Property L. Rev. 25
Available at: http://scholarship.law.marquette.edu/iplr/vol3/iss1/2