ABSTRACT
This chapter discusses the US functionality doctrine with the aim of using it as a comparative tool for the assessment of EU functional trade marks. The first part addresses the rationale and legal framework of US functionality doctrine and its judicial roots. Part 3.1. explores the development of the US functionality doctrine intertwined with the protection of trade dress, as emerging from unfair competition grounds and evolving toward the registration of trade marks. It discusses the concept of trade dress as opposed to technical trade marks, the registration of trade dress upon the Lanham Act, the definition of technical and aesthetic functionality upon the First Restatement of Torts and Restatement (Third) of Unfair Competition. A distinct part looks into a series of landmark judgments that established the functionality tests still currently in use, that is, Morton-Norwich, Qualitex, Inwood, TrafFix. The last part discusses recent US scholarships that reaffirm the meaning and operative capacity of functionality across different intellectual property rights (design, trade mark, patent, copyright) in search of a proper balance across the IP system and enhancing market competition.
