Please use this identifier to cite or link to this item: https://scholarbank.nus.edu.sg/handle/10635/155791
Title: REGISTERING COLOUR MARKS: IN SUPPORT OF THE NECESSITY OF THE FUNCTIONALITY DOCTRINE
Authors: GODFREY JASMINE ALEXANDRA
Issue Date: 9-Nov-2018
Citation: GODFREY JASMINE ALEXANDRA (2018-11-09). REGISTERING COLOUR MARKS: IN SUPPORT OF THE NECESSITY OF THE FUNCTIONALITY DOCTRINE. ScholarBank@NUS Repository.
Abstract: Colour is an important unconventional trademark, and most jurisdictions allow colour to be registered as a mark. Regardless of whether colour falls under ‘utilitarian’ or ‘aesthetic’ functionality, functional effects of colour prohibit the mark from registration. With aesthetic functionality being much more controversial than utilitarian functionality, this paper will argue for the importance of upholding the functionality doctrine. If a feature is essential to a product’s use or purpose or affects its cost or quality, it is prohibited from registration as a mark. Because consumers exhibit preferences for particular colours as applied to particular products, there is a public policy concern that a colour that functions in a particular way such that exclusive use would significantly hinder competition should not be monopolized. Given the importance of both aesthetic and utilitarian functionality—which cannot be looked at in isolation—this paper will argue that the tripartite test as formulated by the Second Circuit in Louboutin v YSL should be used as a test by courts and trademarks examiners when determining functionality, as it is able to combine both aesthetic and utilitarian functionality into one formulation.
URI: https://scholarbank.nus.edu.sg/handle/10635/155791
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