Three-Dimensional Objects as Trademarks: An Instrumentalist Approach
Abstract
As consumer sophistication progresses and develops, more and more producers are focusing not only on the brand under which their product is sold, but also on the external, three-dimensional appearance of the product as a whole. Enter, the laws protecting design patents, or so some claim. We argue otherwise!
In this paper we show why trademark protection should extend to any three-dimensional object that meets the basic requirement of distinctiveness. We argue that the laws protecting design patents should not undermine the ability to extend trademark protection to cover objects, regardless of their type or dimension.
Our argument is one of instrumentalism. We submit that as long as a three dimensional object performs the function of a trademark it should be protected as such, without regard for its potential protection as a design patent.
In our view, these two laws are not, and should not be mutually exclusive, because they are intended to serve distinctly different purposes. Furthermore, we submit that the laws of design patents and the laws of trademarks complement rather than supplement each other.