amicus brief supporting petition for cert on trade dress functionality

Malla Pollack mpollack at
Mon Jul 9 12:35:21 PDT 2007

Dear Colleagues,

         Functionality is the doctrine which prevents trademark- style
rights in products from violating the constitutional limits on Congress'
power to grant patents. The doctrine is a mess -partly because of the
Supreme Court opinion equating several different standards in TrafFix v.
Marketing Displays (1991- opinion by Kennedy).  I have written an amicus
brief supporting a pending petition for certiorari on this issue in the GM v
Lanard Toys case-involving GM's right to prevent a toy company from selling
toys resembling the Hummer/Hummvee.  The brief only asks for cert; it does
not take any position on the proper test for functionality.  I need to file
the brief before  the end of this month.  If you are interested in seeing
the brief, please contact me off list.


            My appologies for cross posting.



Malla Pollack

Professor, American Justice School of Law

mpollack at

270-744-3300 x 28



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