RECENT DEVELOPMENTS IN TRADEMARK FUNCTIONALITY IN THE UNITED STATES

The United States Trademark Act makes unenforceable marks that are “functional.” However, it does not define functionality. Because the Supreme Court decisions on functionality are few in number and ambiguous in meaning, the courts have differed sharply in their approaches to functionality, and their approach is constantly changing.

Using a Hypothetical Case to Teach about Supreme Court Decision Making

This article presents a hypothetical set of facts that can be used as a device to analyze the workings of the Supreme Court, and the theories of judicial restraint, judicial activism and originalism. It also offers students an opportunity to analogize the facts of this case with Roe v. Wade and other Supreme Court decisions.