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Caitlin Canahai and Mark P. McKenna

This chapter argues that “there is little to be gained in terms of trademark value from making product configuration eligible for protection as trade dress.” It states that “the costs of overprotection and the administrative and error costs of the mediating doctrines aren’t justified by the small marginal benefits of protecting configuration as trade dress.” Instead, this chapter argues that “[w]e would be better off returning to a system in which product configuration was excluded as trademark subject matter, with claims involving product configuration considered under the law of unfair competition.” Overall, this chapter states that this proposed system would “save considerable cost and avoid errors of overprotection while still guarding against the risk of real confusion.”

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Mark P. McKenna and Lucas S. Osborn

This chapter explores the American and European experiences with respect to trademark protection in the context of digital goods such as 3D printable files and digitally distributed movies and songs. In the digital world, design and production can increasingly be separated. That has potentially destabilizing consequences for trademark law, which has historically been oriented toward indications of the origin of physical goods. Digitization also puts much more pressure on the boundaries between trademark, copyright and design laws, particularly in cases in which parties assert trademark claims against others based on the content of digital files. We note the greater frequency of such claims in the US and offer some hypotheses about the lack of those claims in Europe.