In this Article, the author addresses an issue of continuing significant concern to trade dress owners by examining the impact of a recent Supreme Court decision on the role of the functionality defense in trademark litigation. He traces the development of the functionality doctrine in the courts and identifies the convergence of the principles underlying the doctrine with the competition concerns of antitrust law. The Article concludes with recommendations for ways of employing the economic analysis used in antitrust litigation as an effective tool to resolve disputes over whether a particular combination of design features is functional.
M. A. Cunningham,
Utilitarian Design Features and Antitrust Parallels: An Economic Approach to Understanding the Funtionality Defense in Trademark Litigation,
18 Hastings Comm. & Ent.L.J. 569
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol18/iss3/8