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146 SUBJECT MATTER: REQUIREMENTS FOR TRADEMARK PROTECTION availability of knockoffs is actually a positive, not a negative thing? Credit economies with different methods for disciplining those who take and do not give back? Are there limiting principles to these types of mechanisms? When are they likely to work well or work badly? For further reading on these subjects, see Christine Cox and Jennifer Jenkins, “Between the Seams, A Fertile Commons,” in Ready To Share: Fashion and the Ownership of Creativity (Norman Lear Center 2005); Kal Raustiala & Christopher Sprigman, “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design,” 92 Virginia Law Review 8 (2006); Kal Raustiala & Christopher Sprigman, The Knockoff Economy: How Imitation Sparks Innovation (2012). TrafFix Devices, Inc. v. Marketing Displays, Inc. 532 U.S. 23 (2001) Justice KENNEDY delivered the opinion of the Court. Temporary road signs with warnings like “Road Work Ahead” or “Left Shoulder Closed” must withstand strong gusts of wind. An inventor named Robert Sarkisian obtained two utility patents for a mechanism built upon two springs (the dual-spring design) to keep these and other outdoor signs upright despite adverse wind conditions. The holder of the now-expired Sarkisian patents, respondent Marketing Displays, Inc. (MDI), established a successful business in the manufacture and sale of sign stands incorporating the patented feature. MDI’s stands for road signs were recognizable to buyers and users (it says) because the dual-spring design was visible near the base of the sign. This litigation followed after the patents expired and a competitor, TrafFix Devices, Inc., sold sign stands with a visible spring mechanism that looked like MDI’s. MDI and TrafFix products looked alike because they were. When TrafFix started in business, it sent an MDI product abroad to have it reverse engineered, that Patent drawing from USPTO record. is to say copied. Complicating matters, TrafFix marketed its sign stands under a name similar to MDI’s. MDI used the name “WindMaster,” while TrafFix, its new competitor, used “WindBuster.” MDI brought suit under the Trademark Act of 1964, as amended, 15 U.S.C. § 1051 et seq., against TrafFix for trademark infringement (based on the similar names), trade dress infringement (based on the copied dual-spring design) and unfair competition. TrafFix counterclaimed on antitrust theories. After the United States District Court for the Eastern District of Michigan considered cross-motions for summary judgment, MDI prevailed on its trademark claim for the confusing similarity of names and was held not
Use as a Mark: Source Identification Function 147 liable on the antitrust counterclaim; and those two rulings, affirmed by the Court of Appeals, are not before us. I We are concerned with the trade dress question. The District Court ruled against MDI on its trade dress claim. After determining that the one element of MDI’s trade dress at issue was the dual-spring design, id., at 265, it held that “no reasonable trier of fact could determine that MDI has established secondary meaning” in its alleged trade dress, id., at 269. In other words, consumers did not associate the look of the dual-spring design with MDI. As a second, independent reason to grant summary judgment in favor of TrafFix, the District Court determined the dual-spring design was functional. On this rationale secondary meaning is irrelevant because there can be no trade dress protection in any event. In ruling on the functional aspect of the design, the District Court noted that Sixth Circuit precedent indicated that the burden was on MDI to prove that its trade dress was nonfunctional, and not on TrafFix to show that it was functional (a rule since adopted by Congress, see 15 U.S.C. § 1125(a)(3), and then went on to consider MDI’s arguments that the dual-spring design was subject to trade dress protection. Finding none of MDI’s contentions persuasive, the District Court concluded MDI had not “proffered sufficient evidence which would enable a reasonable trier of fact to find that MDI’s vertical dual-spring design is non-functional.” Summary judgment was entered against MDI on its trade dress claims. The Court of Appeals for the Sixth Circuit reversed the trade dress ruling. The Court of Appeals held the District Court had erred in ruling MDI failed to show a genuine issue of material fact regarding whether it had secondary meaning in its alleged trade dress, id., at 938, and had erred further in determining that MDI could not prevail in any event because the alleged trade dress was in fact a functional product configuration, id., at 940. The Court of Appeals suggested the District Court committed legal error by looking only to the dual-spring design when evaluating MDI’s trade dress. Basic to its reasoning was the Court of Appeals’ observation that it took “little imagination to conceive of a hidden dual-spring mechanism or a tri or quad-spring mechanism that might avoid infringing [MDI’s] trade dress.” Ibid. The Court of Appeals explained that “[i]f TrafFix or another competitor chooses to use [MDI’s] dual-spring design, then it will have to find some other way to set its sign apart to avoid infringing [MDI’s] trade dress.” Ibid. It was not sufficient, according to the Court of Appeals, that allowing exclusive use of a particular feature such as the dualspring design in the guise of trade dress would “hinde[r] competition somewhat.” Rather, “[e]xclusive use of a feature must ‘put competitors at a significant non-reputation-related disadvantage’ before trade dress protection is denied on functionality grounds.” Ibid. (quoting Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165 (1995)). In its criticism of the District Court’s ruling on the trade dress question, the Court of Appeals took note of a split among Courts of Appeals in various other Circuits on the issue whether the existence of an expired utility patent forecloses the possibility of the patentee’s claiming trade dress protection in the product’s design. To resolve the conflict, we granted certiorari. II It is well established that trade dress can be protected under federal law. The design or packaging of a product may acquire a distinctiveness which serves to identify the product with its manufacturer or source; and a design or package which acquires this secondary meaning, assuming other requisites are met, is a trade dress which may not be
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INTELLECTUAL PROPERTY: LAW & THE IN
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Table of Contents INTRODUCTION ....
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TABLE OF CONTENTS iii 5.) 1052(e) .
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TABLE OF CONTENTS v d.) A Two-Part
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TABLE OF CONTENTS vii In re Fisher,
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x INTRODUCTION Basic Themes: Three
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xii INTRODUCTION see the Lotus v. B
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CHAPTER ONE The Theories Behind Int
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The Theories Behind Intellectual Pr
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CHAPTER TWO Intellectual Property &
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Limitations on Congressional Power:
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CHAPTER THREE Intellectual Property
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Intellectual Property & the First A
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Contributory Infringement 197 Backg
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Contributory Infringement 199 Claim
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Contributory Infringement 201 on th
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Contributory Infringement 203 B. Di
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Contributory Infringement 205 for w
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Contributory Infringement 207 an un
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Contributory Infringement 209 You h
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Contributory Infringement 211 Googl
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214 DEFENSES TO TRADEMARK INFRINGEM
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232 FALSE ADVERTISING, DILUTION &
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272 INTRODUCTION TO COPYRIGHT: THEO
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What does copyright cover? CHAPTER
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What does copyright cover? 299 Imag
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Originality: Independent Creation a
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The Idea-Expression Distinction 319
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The Idea-Expression Distinction 321
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Merger of Idea and Expression 323 3
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Merger of Idea and Expression 325 W
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Merger of Idea and Expression 327 b
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Merger of Idea and Expression 329 a
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Merger of Idea and Expression 331 t
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Merger of Idea and Expression 333 j
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Merger of Idea and Expression 335 A
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Useful Articles 337 PROBLEM 11-2 [W
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Useful Articles 339 if design eleme
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Useful Articles 341 form, the six-i
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Methods of Operation: Introduction
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Fixation (Copyright Meets Software,
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CHAPTER TWELVE Copyright’s “Rea
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Exclusive Rights 383 Shakespeare’
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The Idea/Expression Distinction in
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The Idea/Expression Distinction in
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Copyright Meets Computer Software:
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Copyright in Characters 407 c.) Cop
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Copyright in Characters 409 charact
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A Two-Part Test for Copyright Infri
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“De minimis” Copying 417 puppy
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“De minimis” Copying 419 Newton
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“De minimis” Copying 421 Notes
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CHAPTER THIRTEEN Limitations on Exc
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Fair Use, Technology and Contributo
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Unpublished works, “Scoops” and
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Transformative Use, Parody, Comment
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Fair Use Meets Technology 465 4.) F
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Fair Use Meets Technology 467 succe
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Fair Use Meets Technology 469 rebut
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Fair Use Meets Technology 471 Compu
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Fair Use Meets Technology 473 Becau
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Fair Use Meets Technology 475 she w
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Fair Use Meets Technology 477 owner
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Fair Use Meets Technology 479 corre
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Fair Use Meets Technology 481 or li
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Fair Use Meets Technology 483 reaso
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Fair Use Meets Technology 485 onlin
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A Fair Use Case-Study: Multiple Cop
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Conclusion 513 annually from Eastla
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CHAPTER FOURTEEN Secondary Liabilit
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The Stakes of Contributory Infringe
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Contributory and Vicarious Infringe
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Inducement Liability 527 power and
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Inducement Liability 529 As the num
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Inducement Liability 531 contributo
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Inducement Liability 533 promoting
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Inducement Liability 535 capability
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Inducement Liability 537 films (e.g
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Inducement Liability 539 114 Yale L
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Safe Harbors: Section 512, Direct I
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558 ANTI-CIRCUMVENTION: A NEW STATU
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CHAPTER SIXTEEN Copyright & State M
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Introduction 605 (A) any cause of a
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Introduction 607 viewer directly to
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Subject Matter and General Scope: E
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Preemption, Misappropriation & the
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632 PATENTS: HOPES, FEARS, HISTORY
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CHAPTER EIGHTEEN Patentable Subject
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Laws of Nature and Natural Phenomen
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698 REQUIREMENTS FOR PATENT PROTECT
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CHAPTER TWENTY Requirements for Pat
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Novelty: Basics 721 recapitulate al
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Novelty: Basics 723 was no evidence
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Novelty: Anticipation of Every Elem
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Novelty: Inherency 731 of invalidit
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Novelty: Inherency 733 rationale be
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Statutory Bar: Public Use 735 for a
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Statutory Bar: Public Use 737 adopt
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Statutory Bar: The Experimental Use
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746 NON-OBVIOUSNESS Graham v. John
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748 NON-OBVIOUSNESS Jefferson’s p
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750 NON-OBVIOUSNESS be patentable i
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752 NON-OBVIOUSNESS authorize the i
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754 NON-OBVIOUSNESS B. The Inventio
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756 NON-OBVIOUSNESS most be periphe
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758 NON-OBVIOUSNESS of the tubing,
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760 NON-OBVIOUSNESS toward nonobvio
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762 NON-OBVIOUSNESS contaminating s
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764 NON-OBVIOUSNESS solve the probl
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766 NON-OBVIOUSNESS now claims. 3 T
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768 NON-OBVIOUSNESS A. Who Is Presu
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770 NON-OBVIOUSNESS PROBLEM 21-1 a.
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CHAPTER TWENTY-TWO A Creative Commo
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A Creative Commons? Summary and Con
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James Boyle, A Creative Commons 777
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