Fordham Law School
Before beginning, let me mention that I will confine myself to a limited number of arenas. Thus, for example, I'm not going to discuss design patents, which will be the focus of another speaker's remarks. I will also not discuss the doctrine of aesthetic functionality. My primary goal will be to compare trademark's doctrine of utilitarian "functionality" with copyright's domain of "separability," and to show how for at least two circuit court opinions, the two doctrines may be converging. I hope to stimulate discussion of whether such convergence would be a good idea.
Wendy J. Gordon, Orit Fischman Afori, Mark Janis & Jonathan Moskin,
The Global Contours of IP Protection for Trade Dress, Industrial Design, Applied Art, and Product Configuration
Fordham Intellectual Property, Media & Entertainment Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2053