In our class last night, we took on the challenge of understanding the shifting views of functionality, the doctrine that precludes trademark protection for utilitarian features.
We saw how the Court of Customs and Patent Appeals in In re Morton-Norwich Products, Inc., 671 F.2d 1332 (C.C.P.A. 1982), adopted the view that legal or de jure functionality was a subset of those features that are de facto functional. The smaller subset involved those utilitarian features that were "superior" in light of the competitive necessity test stated in Ives Laboratories, Inc. v. Darby Drug Co., 601 F.2d 631 (2d Cir. 1979).... more »
