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THE AESTHETIC FUNCTIONALITY DOCTRINE AND THE LAW OF TRADE-DRESS PROTECTION

I am indebted to the staff of the Cornel Law Reiew for its invaluable assistance in bringing this piece to publication. Particular thanks are owed to Leo R. Tsao for indispen- sable advice and encouragement during the initial drafts; to Nathan C. Thomas, StevenJ. Scott, and Samson M. Frankel for editorial oversight; and to Christine M. O'Reilly and Susan G. Pado for tireless administrative and clerical support on this. | NOTE THE AESTHETIC FUNCTIONALITY DOCTRINE AND THE LAW OF TRADE-DRESS PROTECTION Mitchell M. Wongf Introduction.1117 I. The Law of Trade-Dress Protection.1121 A. Purposes of Trade-Dress Law.1121 1. Protection of Firms from Misassociation.1124 2. Prevention of Goodwill Misappropriation.1125 3. Facilitation of Meaningful Consumer Participation in the Market.1126 4. Encouragement of Production of High-Quality Products.1127 B. The Lanham Act and Related State Remedies.1128 II. The Identification Theory of Functionality and Its Tests.1132 A. The Identification Theory.1132 B. Four Tests Under the Identification Theory.1134 1. The Indicia of Source Test.1134 2. The Actual Benefit Test.1136 3. The Consumer Motivation Test.1138 4. The Commercial Success Test.1140 c. Why These Tests Belong Under the Identification Theory.1141 in. The Competition Theory of Functionality AND Its Tests.1142 A. The Competition Theory.1142 t This Note received the 1998 Gerald Rose Memorial Award for Best Paper in Intellectual Property from the Center for Intellectual Property at the John Marshall School of Law and was Winner of the New York Intellectual Property Law Association s 1998 Honorable William c. Conner Writing Competition. I am indebted to the staff of the Cornell Law Review for its invaluable assistance in bringing this piece to publication. Particular thanks are owed to Leo R. Tsao for indispensable advice and encouragement during the initial drafts to Nathan c. Thomas Steven J. Scott and Samson M. Frankel for editorial oversight and to Christine M. O Reilly and Susan G. Pado for tireless administrative and clerical support on this Note. Finally I would also like very much to acknowledge the diligent efforts of the Law Review Associates who worked on portions of this piece Paul M. Buono Adam M. Chud David M. Fine Steven D. Greenblatt Darian M. Ibrahim Jason E. Murtagh Christopher A. Ogiba Kamran Pasha and John M. Tolpa. 1116 1998 AESTHETIC FUNCTIONALITY 1117 B. Six Tests Under the .