| As a useful theory preventing anti-competitive effect of trademark protection,functionality doctrine has been generally accepted by the trademark law worldly.Traditionally, if a product feature or design helps the utility of products in themechanical sense, it is considered functional, thus can not get trademark protection.This kind of functionality is called utilitarian functionality. With the development offunctionality doctrine, there comes another concept-aesthetic functionality. So, whatis aesthetic functionality, what value does aesthetic functionality have, how to applyaesthetic functionality in practice. To sort out these problems, we would walk into thetheory’s birthplace-the United States. This paper tries to make a preliminary study ofaesthetic functionality centering on American Law. The paper is divided into fiveparts:Part I introduces the concept and two types of aesthetic functionality. Currently,there are two kinds of aesthetic functionality in American, positive or affirmativeaesthetic functionality and defensive aesthetic functionality. Through the criticism ofdefensive aesthetic functionality, this paper clarifies the true state of aestheticfunctionality.Part II describes the development process of aesthetic functionality in American.The aesthetic functionality is developed along with many cases, in this part, I willselect some important cases to show the theory’ birth, development, depression,regeneration and recent application.Part III analyzes the theoretical basis of the aesthetic functionality. Aestheticfunctionality meets the policy of functionality doctrine, and it is an effective tool forthe protection of market competition. The policy Aesthetic functionality purports toserve can not be performed by the existing distinctiveness requirement. The fact thatvast majority of the Federal Circuit Court of Appeals and the United States Patent andTrademark Office have accepted the notion of aesthetic functionality confirms thereasonableness of aesthetic functionality theory.Part IV discusses the test of aesthetic functionality. Through the analysis ofdifferent tests, I think the correct one is “Competitive Necessity,” i.e. a functional feature is one the exclusive use of [which] would put competitors at a significantnon-reputation-related disadvantage. Two factors are very important to determine“Competitive Necessity,” the alternative design and the relevant product market. Inthe respect of alternative design, it is necessary to consider both the number and thequality of alternative designs. As to the relevant product market, it should be definedneither too wide nor too narrow.Part v gives some suggestion to our county. In the legislation, I suggest thataesthetic functionality and utilitarian functionality should be united to a commongeneric concept–functionality. The legislation is made up of two parts, principleprovision and specific provisions. They can be achieved respectively through differentlevels, legal level and regulatory level.In the application, I propose that we should bevery cautious to invoke aesthetic functionality. Only when the problem can not beresolved by using traditional utilitarian functionality or technical functionality, shouldwe apply aesthetic functionality theory to deny trademark registration or trademarkprotection. |
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