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Defensive Aesthetic Functionality: Deconstructing the Zombie

December 22, 2011

Defensive Aesthetic Functionality: Deconstructing the Zombie

December 22, 2011

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Anthony L. Fletcher
INTA Trademark Reporter, Vol. 101 No. 6

November-December, 2011

Reprinted with permission from the International Trademark Association (INTA), 2011. The author, Tony Fletcher, tied for third place in the Ladas Memorial Award Competition in the Professional Category in 2012.

Dictionary.com defined “zombie” as “the body of a dead person given the semblance of life, but mute and will-less, by a supernatural force, usually for some evil purpose.” The word is a decent metaphor for the doctrine of defensive aesthetic functionality; believed buried and nearly forgotten, it unexpectedly arose and stalked the marketplace earlier this year, claiming as its victim an eternal “flapper” named Betty Boop. Whether that is “evil” is a matter of opinion, but as of this writing, it is believed to be moot—until it arises again, which seems likely, sooner or later.

Functionality itself is a conundrum. The U.S. Trademark (Lanham) Act of 1946 lists it as a ground for refusing registration, as a basis for cancellation of a registration at any time, as a reason for denying “incontestable” status to registrations, and as a challenge that may be asserted against the conclusiveness of an incontestable registration as evidence of exclusive right to use the mark that is the subject of the registration. But the Act nowhere defines “functional” or “functionality.”

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