| Summary: | 碩士 === 國立中正大學 === 財經法律系研究所 === 104 === The American law distinguishes functionality doctrine between utilitarian functionality and aesthetic functionality. The development of aesthetic functionality can be traced back to Restatement of Torts § 742, comment a (1938). Aesthetic functionality means that a product feature is essential to the use or purpose of the article or if it affects the cost or quality of the article, that is, exclusive use of the feature would put competitors in a significant non- reputation- related disadvantage position. The trademark is not registrable when it falls into the scope of aesthetic functionality. Due to the traditional marks (such as word marks) don’t have appeals to aesthetics, only non- traditional marks can be applied to aesthetic functionality.
There are many cases for aesthetic functionality in American Law. Due to the lack of a consistent standard in the American Law, there is chaos when applying aesthetic functionality. Thus, this thesis tries to evaluate the standard of aesthetic functionality by analyzing cases. In R. O. C., aesthetic functionality doctrine was first found in the Examination Guidelines on Non- Traditional Trademarks of 2012, which was established by conferring the American Law. Thus, this thesis tries to analyze and compare the aesthetic functionality between the United States and our country.
The purpose of aesthetic functionality is to prevent from influencing the development of the industries when the owners register the trademarks. This thesis claims that we should take a strict way when applying aesthetic functionality doctrine.
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