Mr. Barber examines the Supreme Court's recent treatment of trade dress protection for product configuration, also referred to as product design. Although the Wal-Mart and TrafFix decisions have begun to limit product configuration protection under trademark law, the high court should have gone further and eliminated product configuration protection, due to its monopolistic and anti-competitive effects. The Comment explores the history and effectiveness of the functionality doctrine, which attempts to resolve the conflict between patent and trademark law over protecting useful product designs. Since what constitutes a functional feature is not easily discerned, the doctrine fails to prevent firms from obtaining virtual monopolies over useful design features. The failure of the functionality doctrine leads to economic inefficiency and ultimately to increased prices for consumers. While moderate price control of a product through brand loyalty is warranted, control of a product's price due to consumers preferring a protected functional design is anticompetitive because the advantageous design may have nothing to do with brand loyalty. The author argues that the uncertain functionality doctrine should be abandoned along with product configuration protection under trademark law.
Timothy M. Barber,
High Court Takes Right Turn in TrafFix, But Stops Short of the Finish Line: An Economic Critique of Trade Dress Protection for Product Configuration,
7 Marq. Intellectual Property L. Rev. 259
Available at: http://scholarship.law.marquette.edu/iplr/vol7/iss1/8