| 英文摘要 |
For maintaining a fair competition environment, channeling devices are mandated by intellectual property law to separate utility or function from ornamental or aesthetic attribute of fashion designs. These channeling devices consist of copyright law’s“physical and conceptual separability”; trademark law’s“utilitarian and aesthetic functionality”; and design patent law’s“ornamentality”. However, these channeling devices are not able to provide clear guidelines due to the involvement of“aesthetics”in functionality mechanism.
Fashion designs are considered aesthetic or at least contain aesthetic ingredients. Customers purchasing clothing, cosmetics, handbags, jewelries, or footwear, etc., to some degree, are motivated by their aesthetically pleasing appearances. It is found that“aesthetics”is multi-faceted in intellectual property law arena when aesthetic-related terms can be found in statutes and case laws, and in essence entangled with creativity and functionality mechanism.
This article suggests an overarching channeling device based on the dual-nature functionality doctrine to provide guidelines and clear current chaos. Further, legal interpretation of aesthetics has been very confusing, and invites many problems. Terms such as“ornamental”in U.S. Patent Act is very troublesome because it is obscure an indefinite. Instead, aesthetics-neutral terms, e.g.,“visual appeal”in R.O.C. Patent Act are preferable, and this article suggests that we shall advocate this statutory term.
Although contemporary art, e.g., bioart, is a significant variant in patent regime, some believe that it is the future of fashion industries. Their patents are utility rather than design ones, it raises a question about whether they can be eligible to remain in design patent realm. This article suggests that, before design patents granted to them, they are not in design patent regime yet according to the current intellectual property regulations. |
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