Product Simulation: From Tort to Intellectual Property

Samuel Oddi, University of Akron School of Law

Abstract

In sum, the law relating to the protection of product configurations seems to have come full circle from the common law, and then some, with protection against product simulation now being provided on a nationwide as compared to a state-by-state basis. This, it is submitted, has resulted from the “propertization” of the tort of product simulation under Section 43(a).

In view of the nationwide scope of protection and the breath of that protection as afforded by a broad interpretation of traditional elements of distinctiveness and likelihood of confusion, a narrow interpretation of functionality, coupled with the liberal granting of equitable remedies, serious concerns arise about the anticompetitive effects of providing such protection on a non-time-limited basis. As a consequence, significant costs may be imposed upon society by such a scope of protection, as will be outlined in the next section of this article. Positing trademarks as intellectual property, a cost/benefit analysis will be undertaken comparing traditional trademarks to product configurations. Then, the applicability of the underlying instrumental assumptions of intellectual property (that an insufficient quantity would be created and exclusivity is the optimal inducement) to unregistered product configurations will be addressed. In the following section, the property and tort aspects of a Section 43(a) product simulation case will be considered. In particular, the three sequential issues of intellectual property (validity, infringement, and remedies) will be considered to identify and analyze tort, property or hybrid aspects of product configuration protection. In comparison to the intellectual property cost/benefit analysis of the previous section, a tort economic analysis will then be undertaken. To close this section and provide a further basis for characterization of product simulation cases, corrective justice will be introduced as an alternate tort jurisprudential theory to economic (deterrence) theory, with an end to determining whether this theory may justify the protection of product configurations. In the last section some conclusions will be drawn concerning the amelioration of any anticompetitive consequences of creating intellectual property in product configurations.