Trade Dress Rights as Instruments of Monopolistic Competition: Towards a Rejuvenation of the Misappropriation Doctrine in Unfair Competition Law and a Property Theory of Trademarks

Article excerpt

I. INTRODUCTION
II. TRADEMARKS AND COMPETITION
    A. Trademark Law as Part of a Broader Unfair Competition
       Law
    B. Seeking the Limits of the Trademark Monopoly
    C. Trade Dress Rights, Product Differentiation, and
       Protection from Imitative Competition
III. FUNDAMENTAL INTUITIONS OF THE ECONOMICS OF PRODUCT
      DIFFERENTIATION
      A. The Theory of Monopolistic Competition
      B. Product Variety and Social Welfare
      C. Locational Competition
         1. Asymmetrical Preferences and Market Power
         2. Hotelling's Linear Market
         3. The Principle of Maximum Product Differentiation
         4. Locational Competition in Product Space
         5. Spatial Models with a Circular Market
         6. Cluster Effects
         7. Summary of the Emerging Economic Principles
      D. Implications for Unfair Competition Theory: The Revival
         of the Misappropriation Doctrine
IV. IMPLICATIONS FOR TRADEMARK DOCTRINE
      A. The Inherent Distinctiveness of Trade Dress
         1. The Requirement of Inherent Distinctiveness as a
            Balance of Interests
         2. Case Law on the Protectability of Trade Dress
            a. The Approach of the United States Court of
               Appeals for the Fifth Circuit in Chevron
            b. The Seabrook-Test
            c. The Supreme Court Ruling in Two Pesos
            d. The Qualification of Two Pesos: A Secondary
               Meaning Requirement for Product Design Trade
               Dress
            e. Critical Analysis of the Wal-Mart Ruling: Inherent
               Distinctiveness of Trade Dress and Dynamic
               Competition with Differentiated Products
      B. The Scope of Protection: Confusion or Association?
      C. Limits to Trade Dress Protection: New Ground for the
         Functionality Doctrine
         1. The Constitutional Right to Copy
            a. The Relevant Case Law
            b. The Quest for a Dogmatic Foundation of the
               Constitutional Right to Copy
            c. Evaluation of the Constitutional Right to Copy as
                a Legal Doctrine
         2. The Federal Preemption Doctrine: Establishing a
            Peaceful Coexistence Between Patent, Copyright,
            and Trade Dress Protection
         3. An Introduction to the Functionality Doctrine
         4. Defining de jure Functionality in Terms of
            Competitive Need
         5. The Distinction Between Utilitarian and Aesthetic
            Functionality
         6. The Ruling of the Tenth Circuit in Vornado Air
            Circulation Systems, Inc. v. Duracraft Corporation
         7. Functionality and Trademark Genericity
         8. The Competition Theory of Functionality and Its
            Economic Analysis
            a. Defining Submarkets
            b. The Relevance of Submarkets for Trademark Law
            c. Trade Dress Cases Invoking the Submarket
               Concept
V. CONCLUSION: A PROPERTY THEORETIC APPROACH OF
     TRADEMARK LAW

I. INTRODUCTION

This paper examines the dogmatic implications of the well-established principle that trademark rights are nothing but a part of unfair competition law. It begins by studying the historical development of trademark protection, which reveals that the grant of an exclusive right was not only directed at combating consumer deception, but also a means to protect goodwill as an intangible value of the trademark holder. In the course of legal development, the notion of protecting the public from various forms of consumer confusion became the dominant justification for recognizing and enforcing trademark rights, thereby suppressing trader interests viably protectable through a system of trademark protection based on the property concept. The interest of the trademark holder to exploit his goodwill, even in distant markets and in the absence of any likelihood of confusion, was the subject of dilution laws, which were often seen as both an undesirable propertization of trademark doctrine that unduly restricted freedom of competition and as an exception to traditional trademark theory. …