Title: Protecting the Form but Not the Function: Is U.S. Law Ready for a New Model High Tech?
Abstract: Introduction As our society develops, it produces new and different kinds of intangible goods. However, many of the mechanisms available to protect such goods date back hundreds of years and are inadequate and in desperate need of an overhaul in order to adapt to the new realities of our world. Overly rapid doctrinal expansion can result in negative collateral effects, such as lack of precisely defined standards and blurring of boundaries between doctrines. Such side-effects risk disturbing the delicate balance between free competition and protection that underlies the structure of our intellectual property laws. The growth of intellectual property protection must therefore involve a constant rebalancing between the interests of creators and those of the public at large. One of the areas that has undergone rapid change in recent years is protection of product design. Pressured by systemic demands for stronger protection mechanisms, judicial decisions have dramatically broadened the scope of protection, in particular in the area of trade dress law. Many of these decisions, however, are rendered in an immature doctrinal environment, characterized by the use of imprecisely defined concepts and doctrines that are incongruous with the needs of the intellectual property to be protected. This incongruity between problem and solution can create precedents that threaten the balance between free competition and protection. That balance can be restored, however, by limiting trade dress protection and implementing specialized design protection mechanisms. Legislative models for more closely tailored protection mechanisms exist, and should be considered. Summary Part I. Our society continually produces new types of intellectual property (IP). The protection required by these new types of IP drives existing IP laws to relentless expansion. The effects of rapid growth of legal doctrines can easily disturb the balance between free competition and protection by forcing a new problem into an old solution. Part I of this paper delves into the manifestations of doctrinal expansion. Such symptoms include a change in the underlying function of the laws, convergence of doctrines (in particular copyright and trademarks which are the focus of this paper), blurred doctrinal dividing lines, creation of hybrid judicial monopolies that are immune to the limitations of either doctrine, and the use of protection mechanisms that do not fit the needs of the particular form of IP to be protected. Part II discusses a of claim that has emerged in recent years and is pushing protection under the Lanham Act beyond its originally intended scope. The type of look protection, a variety of product design, covers not individual products, but rather the common elements of an entire line of products. In a crowded marketplace, distinctive design plays an increasingly important role as product differentiator. Designer articles are particularly vulnerable to copying because, unlike an internal mechanical part or a chemical composition, they wear their ingenuity on the outside, for all to see. This section then discusses three lines of conceptually related cases, in which protection is extended to an entire line of items in the areas of visual art, music and utilitarian product design. Part III analyzes the two defining elements of trade dress: non-functionality and distinctiveness. These elements present the following four problems with respect to product design type of look cases: (1) most courts eschew the aesthetic functionality analysis, because no standards for application exist. Although in some cases its application could help limit the scope of trade dress protection, opinions on the need for this doctrine are mixed; (2) the basic requirement for type of look protection is precise expression of the claimed design, however no criteria exist to define the requisite level of precision. …
Publication Year: 2004
Publication Date: 2004-01-01
Language: en
Type: article
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