“The Doctrine of Functionality in Trade-mark Law Post-Kirkbi”, (2007) 21 I.P.J. 87-115.
The doctrine of functionality has long served to prevent the creation of trade-mark monopolies over the functional features of wares. In Kirkbi AG v. Ritvik Holdings Inc., the Supreme Court of Canada emphasized the policy basis for the doctrine which it described as “a logical principle of trade-marks law”. In this article, the author examines the Kirkbi decision and identifies a number of issues which remain unresolved by the Court’s reasons. These include the reconciliation of approaches to functionality in earlier court decisions, the role of prior patents, the scope of the doctrine of functionality, issues of utility and ornamentation, and the subject matter to which the doctrine applies.
