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Trademark and Unfair Comp.

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Presentation on theme: "Trademark and Unfair Comp."— Presentation transcript:

1 Trademark and Unfair Comp.
Boston College Law School January 23, 2008 Trade Dress, Functionality

2 Trade Dress & Product Design

3 Trade Dress Protection
Lanham Act § 43(a) Any person who shall affix, apply, … or use in connection with any goods or services … a false designation of origin … , and shall cause such goods or services to enter into commerce … shall be liable to a civil action … .

4 Two Pesos v. Taco Cabana 505 U.S. 763 (1992)
Taco Cabana Trade Dress

5 Two Pesos v. Taco Cabana 505 U.S. 763 (1992)
Findings of the District Court Taco Cabana has an identifiable trade dress The trade dress is non-functional The trade dress is inherently distinctive The trade dress has not acquired secondary meaning

6 Inherently Distinctive?

7 Inherently Distinctive?

8 Policy Considerations
Harm to Competition Product Design Potential for Confusion Trade Dress, Trademarks High Low Generic Descriptive Inherently Distinctive Distinctiveness

9 Example - Review

10 Functionality Lanham Act § 2(e)(5)
No trademark … shall be refused registration … unless it -- (e) Consists of a mark which, … (5) comprises any matter that, as a whole, is functional

11 TrafFix v. MDI 121 S. Ct (2001)

12 Functionality When is something “functional”?
Essential to the use or purpose of the article, or Affects the cost or quality of the product Overall policy consideration Exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage

13 Eco v. Honeywell

14 Aesthetic Functionality

15 Au-Tomotive Gold v. VW

16 Hypos

17 Hypos

18 In re Gibson Guitar Corp.

19 Functionality - Summary
When is something “functional”? Essential to the use or purpose of the article Affects the cost or quality of the product Factors to consider Existence of utility patent Statements in advertising Existence of alternative designs Cost of manufacturing

20 Hypothetical

21 Hypothetical

22 Patent, Copyright, Trademark
Useful Article Doctrine Computer Software Trademark Product Design Fictional Characters Functionality Doctrine

23 Administrative Details
Next Assignment Read III.A & B Use in Commerce Priority and Concurrent Use

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