TMSR, part 3

Session 3: Defining Marks in Trademark Law vs. Defining Subject Matter in Adjacent Areas of IPIn formulating rules about defining marks in trademark law, what (if anything) can be learned from the longstanding debate about defining pictorial, graphic, and sculptural works in copyright law? What can be learned from the nascent modern debate in design patent law about defining design patent subject matter through the disclosure in a design patent document? How do these mainly doctrinal questions feed into conceptual inquiries—such as, what is a “design” for purposes of design patent law, and how does that compare to what we think a “mark” is in modern trademark jurisprudence? Is the ornamental visual impression associated with an article of manufacture (as per design patent law) distinct from the non-functional goodwill-symbolizing combination of visual characteristics (as per trademark law)? To what extent can we use doctrine in these areas to help…

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