For much of American history, in order to promote competition among the producers of useful products, the law did not grant protection to the design of such products unless the design met the demanding requirements for patent or copyright protection. In the 1980s, an expansion of trade dress law resulted in protection of product designs, with the courts relying primarily on the functionality doctrine to preserve the interest in competition. The functionality doctrine, however, riddled by ambiguity and conflicting interpretations, was not effective in preventing overly broad protection of the designs of useful products. As a result, more and more designs of useful products were insulated from com-petition through trade dress law protection, and society’s interest in obtaining the best goods at the lowest cost was hampered. In the last ten years, the Supreme Court has indicated its distrust of this expansion of trade dress law. In particular, in TrafFix Devices v. Marketing Displays, the Court narrowed trade dress protection by providing a broader definition of functionality. Many scholars have struggled to make sense of the TrafFix decision, and many courts have struggled to apply it. The federal courts and the Trademark Trial and Appeal Board are split in their interpretations and applications of the TrafFix holding. Thus, there is considerable confusion about the extent to which the designs of useful products should be protected under trade dress law. It is time to resolve this confusion and return to the earlier era when trade dress law did not grant protection to the overall design of useful products.
50 IDEA 593 (2010)