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Functionality Rearing its Head in Law Of Design Patents, AIPLA Panelist Proclaims

  • 05.09.13
  • Paul Shukovsky
  • BNA Patent Trademark & Copyright Journal

Tracy-Gene Durkin is quoted in a recent BNA Patent Trademark & Copyright Journal article discussing confusion around the issue of functionality. Vagueness of language and disparate tests in proceedings creates complication and dysfunction in pursuing or litigating design patents.

Durkin discusses some points of confusion, highlighting the difficulties caused by the intersection of visual design and functionality in mobile devices, apps, and icons: "the most important thing is that the image—the icon or graphical user interface—actually function as a trademark….That might be easy to show with an icon for example. But when it comes to something that is really more a graphical user interface…you're going to have a hard time showing that consumers actually associate that with a particular product.”

To read the full article, view the attached PDF.

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