The Study Of Trademark Aesthetic Functionality

Provisions regarding the aesthetic functionality doctrine earliest found in Restatement(Second) of Torts(1938), although it has been a long time since the aesthetic functionality doctrine put forward, China’s relevant treatise did not do much thorough research on aesthetic functionality, even in the United States Courts also did not form a unified opinion. Aesthetic functionality is justified or not, whether it can be included within the scope of utilitarian functionality theory, whether it can be replaced by the theory of distinctiveness, what is the effect on competition, which criteria should be adopted. There are different viewpoints about the justification of aesthetic functionality, it is also a cause of disagreement when we apply aesthetic functionality, and the sole justified reason of aesthetic functionality that can be accepted is the need for competition. This paper studies and analyzes the justified reason of aesthetic functionality, it must be helpful to explain these doubts. This paper is divided into five parts:The first part gives a brief introduction of aesthetic functionality doctrine and the controversy about it. This part points out the concept of aesthetic functionality and gives a carding of its development in the United States through some representative cases. This part analyzes relationships between aesthetic functionality, utilitarian functionality and the distinctiveness, at the same time it studies the influence of aesthetic functionality on competition, in this way it makes viewpoints of the above controversy.The second part reveals the essential justification of aesthetic functionality doctrine that is promoting competition. From the historical point of view that the functionality doctrine has two purposes: to distinguish objects between patent and trademark and to protect competition. This part points out the unreasonable account of the first purpose and dialectically analyzes the "right to copy" theory and the "need to copy" theory, eventually it points out that the fundamental purpose of functionality doctrine is to protect competition. The first purpose of functionality doctrine is only a means of protecting competition, by distinguishing between the various branches of the object of intellectual property, it can ensure that public can freely copy features that are necessary to compete, and it can promote competition in the market.The third part analyzes the justification of aesthetic functionality doctrine from the perspective of the public domain of trademark law. First, this part defines and analyzes the public domain of trademark law, it points out that the existence of trademark law public domain has a positive effect on competition. The public domain can retain enough space for competitors to obtain an equal opportunity so that they can compete freely. The aesthetic functionality is an important means to ensure the public domain and thus it is an important means to protect free competition.The fourth part analyzes the standard of trademark aesthetic functionality. This part defines the scope of aesthetic functionality and points out that the “competitive necessity” is the standard of aesthetic functionality, which requires to consider the necessity of aesthetic functionality when apply it, the relevant market, alternative designs and other factors must be considered too.