Empirical study of the aesthetic functionality on color trademarks

Wang, Xiaoren

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https://hdl.handle.net/2142/105054 Copy

Description

Title

Empirical study of the aesthetic functionality on color trademarks

Author(s)

Wang, Xiaoren

Issue Date

2019-04-18

Director of Research (if dissertation) or Advisor (if thesis)

Heald, Paul J.

Doctoral Committee Chair(s)

Heald, Paul J.

Committee Member(s)

• Lawless, Robert M.
• Robbennolt, Jennifer K.
• Mehta, Ravi

Department of Study

Law

Discipline

Law

Degree Granting Institution

University of Illinois at Urbana-Champaign

Degree Name

J.S.D.

Degree Level

Dissertation

Keyword(s)

Empirical, Aesthetic functionality, Color trademarks

Abstract

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.

Graduation Semester

2019-05

Type of Resource

text

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

Copyright and License Information

Copyright 2019 Xiaoren Wang

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