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Title:Empirical study of the aesthetic functionality on color trademarks
Author(s):Wang, Xiaoren
Director of Research:Heald, Paul J.
Doctoral Committee Chair(s):Heald, Paul J.
Doctoral Committee Member(s):Lawless, Robert M.; Robbennolt, Jennifer K.; Mehta, Ravi
Department / Program:Law
Degree Granting Institution:University of Illinois at Urbana-Champaign
Subject(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.
Issue Date:2019-04-18
Rights Information:Copyright 2019 Xiaoren Wang
Date Available in IDEALS:2019-08-23
Date Deposited:2019-05

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