Should Trademark Law Protect Non-Traditional Trademarks?

Abstract

Trademark should not protect non-traditional trademarks, but the practice will continue. Yet, by examining branding and related marketing and design practices, we can find ways to limit trademark expansion. In simplified terms, current U.S. and EU trademark law limits such protection by denying protection when a claimed feature is essential to competition. Both approaches require understanding and breaking apart what elements of a claimed mark are essential, and so miss the way branding operates. Branding uses aesthetics and pre-existing culture to create a whole, inseparable offering that captures essences to influence buyers and compete. Thus this chapter argues that stopping protection for non-traditional marks is the best choice. As that is unlikely, the chapter uses brand literature to show ways to deny protection to whole categories of non-traditional trademarks, and provide tools to show that any given claimed non-traditional mark is likely aesthetically functional and should not receive trademark protection.