19. Trade Dress – Functionality
Learning Objectives: Unit 19
Upon completion of this unit, you should be able to:
- Explain the concept of functionality.
- Explain the policy issues involved in the doctrine of functionality.
- Analyze functionality in factual scenarios.
As with the cases for unit 20, TrafFix Devices v. Marketing Displays (2000), involves trademark rights being asserted in trade dress—here, the dual springs used as part of a traffic sign. You can see examples of the MDI sign at http://www.mditrafficcontrol.com/construction-utility/mdi-compact-reg-sign.html and the TrafFix sign at https://www.traffixdevices.com/products/signs-stands. Unlike in those cases, however, distinctiveness is not at issue. Instead, the accused infringer is raising a different type of challenge to trademark rights: that the feature over which rights are being claimed is functional.
