Empirical study of the aesthetic functionality on color trademarks

Although trademark law permits the protection of “trade dress” (distinctive product shape, ornamentation, and packaging), the enforcement of too strong a property can stifle competition. U.S. courts apply the “aesthetic functionality” doctrine in trademark infringement cases to address this concern. “Aesthetic functionality” refers to non-reputation-based advantages protecting trade dress might provide. In a specific case, the judge decides whether the disputed trade dress is aesthetically functional. If so, the trade dress is denied protection, even if it identifies the source of the product to consumers. The doctrine applies especially relevantly to color trademarks, a sub-category of trade dress. I explore the historical case law and point out three problems in determining a color’s aesthetic functionality: (1) Judges lack tools to diagnose the de-facto advantage a color might have, and their decisions are often intuitive and speculative; (2) Judges rarely evaluate properly the substitutability of alternative colors; (3) a color’s non-reputation-based advantage (pure attractiveness) is hard to isolate from its reputation as a trademark. This dissertation tries to address the first and second problems. I review psychological and economic research--psychological studies of color effects and economic measures of anticompetitive costs--to improve the process of diagnosing a color’s de-facto advantages and evaluating alternative colors’ substitutability. At the end of the dissertation, I propose and illustrate three approaches to evaluate the anti-competitive effect of color in specific cases: psychological guideposts, market data analysis, and consumer survey tools.

Name thesis:degree_name

J.S.D.

Level thesis:degree_level

Dissertation

Discipline thesis:degree_discipline

Law

Grantor

University of Illinois at Urbana-Champaign

Year dc:date

2019

Author dc:creator

• Wang, Xiaoren

Contributors dc:contributor

• Heald, Paul J.
• Lawless, Robert M.
• Robbennolt, Jennifer K.
• Mehta, Ravi

• Empirical, Aesthetic functionality, Color trademarks

Statement dc:rights

• Copyright 2019 Xiaoren Wang

Language dc:language

en

Handle dc:identifier

http://hdl.handle.net/2142/105054

OAI identifier oai:identifier

oai:www.ideals.illinois.edu:2142/105054