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.”
The only authority that seems to offer anything resembling a
concise definition is Black’s Law Dictionary, which defines
“functional feature” as follows: “Trademarks. A design element
that is either physically necessary to construct an article or
commercially necessary to manufacture and sell it; a product’s attribute that is essential to its use, necessary for its proper and successful operation, and utilitarian rather than ornamental in every detail.” The definition also explains that “[a] functional feature is not eligible for trademark protection.” Further, the entry contains definitions of “functionality”8 and “aesthetic functionality.” Taken as a whole, these fall only somewhat short of the apocryphal characterization of “legal advice” as that which is “unquestionably correct and absolutely useless.” One can conclude from the analysis thus far that the condition of being “functional” disqualifies whatever it is that is “functional” from being a trademark. The rest offers some tantalizing clues, but the dénouement is yet to come.