Non-Traditional Trademarks and the Dilemma of Aesthetic Functionality

Abstract

As basic principles of American trademark law have allowed for the law’s application to non-traditional designators, the “functionality” doctrine has arguably become the most important bulwark against improper expansion of trademark rights in the U.S. Traditional functionality – sometimes called “utilitarian” or “mechanical” functionality – has a stable analytic framework, but the same cannot be said of “aesthetic functionality,” i.e. the notion that some product features are so aesthetically pleasing or trigger such specific mental responses among consumers that those features should not be monopolized by one competitor. This chapter [in a forthcoming book on non-traditional trademarks] explores the aesthetic functionality doctrine in American trademark law, proposing that (a) the most convincing cases for aesthetic functionality aren’t really about aesthetics, but concern cognitive and psychological responses in consumers, and (b) that aesthetic functionality should bar trademark protection only for product features related to specific cognitive, perceptual, or aesthetic biases that were widespread among consumers before the trademark owner began its own marketing efforts.