In 1896, the eminent American architect Louis Sullivan famously wrote that “[i]t is the pervading law of all things organic and inorganic…that the life is recognizable in its expression, that form ever follows function.” Sullivan was writing about the proper design of an expected wave of “tall office buildings,” but he could have been commenting on modern trademark law.
Trademark law is designed to protect the ability of a manufacturer to use words and symbols to identify the source of its product. Purely functional features of a product, however, cannot qualify as trademarks. Under the Lanham Act, 15 U.S.C. §1115(b)(8), a defendant sued by the holder of a registered trademark, even one that has become incontestable, may defend on the ground that the mark is functional. Two decisions of a panel of the U.S. Court of Appeals for the Seventh Circuit issued on the same day illustrate the reach of that rule and its application to aesthetic features.
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