De Jure Functionality of Shapes Driven by Technical Considerations in Manufacturing Methods

摘要

The paper examines the application of the functionality doctrine to cases where the assertion of trade mark rights in product shapes or features is bound to interfere with the ability of the public to practise unpatented methods of manufacture. After considering the jurisprudence of European and US Courts on this issue, the paper inquires upon the optimal legal test, which should be neither over- nor under-inclusive.