Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Intellectual Property Law

Selected Works

2013

Functionality

Articles 1 - 2 of 2

Full-Text Articles in Law

What's The Frequency, Kenneth? Channeling Doctrines In Trademark Law, Mark Mckenna Nov 2013

What's The Frequency, Kenneth? Channeling Doctrines In Trademark Law, Mark Mckenna

Mark P. McKenna

This paper was published as a chapter in Intellectual Property and Information Wealth (Peter Yu, ed., Praeger 2007). The chapter describes several doctrines that courts have developed to limit the scope of trademark protection where there is a risk of interference with the patent or copyright schemes. It also suggests that courts have in some cases overemphasized the subject matter of protection and underemphasized parties' ability to use trademark law to capture the types of economic benefits for which patent and copyright protection are presumed necessary.


Functionality In Design Protection Systems, Mark D. Janis, Jason J. Du Mont Oct 2013

Functionality In Design Protection Systems, Mark D. Janis, Jason J. Du Mont

Jason John Du Mont

In comparison to functionality doctrine in trade dress cases, scholars have paid relatively little attention to the role of functionality doctrine in design protection systems such as the U.S. design patent system and the EU Community Design regime. Yet functionality considerations potentially affect many validity and scope determinations in the design protection area. In this Article, we critically evaluate judicial application of the functionality doctrine in design protection systems, focusing on the U.S. design patent and EU design protection regimes. We argue that the doctrine as applied in these settings is too often aimless and inconsistent. Some simple doctrinal refinements …