In the past we've talked about the reach of copyright; for example, to facial tattoos
. We haven't (largely due to my own ignorance) talked much about how far trademarks can go.
In the general public there's only a vague awareness of trademarks, usually because of famous cases. Xerox-the-company saw their tradmarked name become used as a generic term for photocopying, for example. And lately it's become fashionable to call all portable digital music players "iPods", which I'm sure Apple's trademark people don't care for.
One interesting question about trademarks parallels that of copyright - what, exactly, is the proper scope for a trademark? In a case last month, the Second Circuit agreed that high-fashion designer Christian Louboutin could indeed hold and defend a trademark in the color of a shoe's sole. The distinctiveness of this particular stylistic element was held to be representative of the company's designs, and thus defensible.
The column's author, Michael Dorf, seems to be taking both sides in the case. On the one hand, he agrees that the 2nd correctly applied the Lanham act in granting the trademark; on the other, he expresses concern that this is part of a larger trend toward overbroad IP protectionism. Generally I agree with that sentiment but in this case I think Dorf is overreaching.
His point is that he agrees with the District court, which originally ruled that trademark was not appropriate because trademarks don't protect functional element. The reasoning that in fashion, "...color is usually a vital element of the aesthetic appeal of a product, which is at the core of its function" seems excessively tortured to me. The logical consequent of that would seem to be that if your function is aesthetics (which is to say, fashion, show, entertainment, etc) then you lose all ability to trademark your distinctive visual elements. And that's going too far for me.