Aesthetic functionality at a crossroads: what a troublesome doctrine can learn from its past

Wang, X. (2020) Aesthetic functionality at a crossroads: what a troublesome doctrine can learn from its past. Chicago-Kent Journal of Intellectual Property, 19(3), pp. 357-395.

Abstract

With the rise of branding and marketing, firms started using trade dress such as product features or packages to identify themselves. Some firms claim an exclusive trademark right on their trade dress. However, granting a trademark right to some trade dresses might hinder competition. For example, if one firm claims trademark on the heart-shaped candy box, it will prevent others from using the same package to compete in the Valentine’s Day sweets market. So U.S. courts developed a doctrine called aesthetic functionality to avoid the competition hindrance consequence. Aesthetic functionality refers to the situation where a trade dress has the aesthetic value and consumers buy the product largely due to that value. Once a court decides a trade dress, such as the heart-shaped box, is aesthetically functional, the trade dress cannot be a trademark owned by any one firm, and every firm can use it in the market. U.S. courts use aesthetic functionality as a legal ground to reject trademark protection of a trade dress when granting such protection would unfairly disadvantage competitors

• Item Type: Articles
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Wang, Dr Xiaoren
• Authors: Wang, X.
• College/School: College of Social Sciences > School of Law
• Journal Name: Chicago-Kent Journal of Intellectual Property
• Publisher: Chicago-Kent College of Law
• Published Online: 25 June 2020
• Copyright Holders: Copyright © 2020 The Author
• First Published: First published in Chicago-Kent Journal of Intellectual Property 19(3): 357-395
• Publisher Policy: Reproduced in accordance with the publisher copyright policy