By Katherine J.
+ Professor of Law, New York University School of Law.
Excerpt from Rounding the Corner on Trade Dress, 29
Yale J. on Reg. 387 (Summer, 2012)
I am extremely pleased to have this opportunity to
contribute a reflection on Judge Richard Cudahy's intellectual property
jurisprudence to this tribute issue. There is much that could be said about the
way that Judge Cudahy's corpus of intellectual property opinions reflects the
qualities I observed in him during my clerkship and continue to admire,
including his keen intellect, commitment to justice and fairness, and deep
insight into the way law works on the ground. In this brief space, rather than
attempt an overview, I will focus on his important 1993 dissent in the
trademark case of Kohler Co. v. Moen Inc. 1 Judge Cudahy's dissents are a very
important part of his jurisprudence, 2 providing perhaps the clearest windows
into his views. 3 The Kohler dissent was prescient, foreshadowing a turn by the
Supreme Court in this century away from an overly simplistic view of
intellectual property as the engine of innovation, which often prevailed in the
1990s, to a renewed understanding of the interplay between intellectual
property and competition as innovation drivers. 4
In Kohler, 5 a Seventh Circuit majority concluded that trade
dress coverage for unpatented product designs presented no conflict with the
patent system. Judge Cudahy penned a well-known 6 dissent, 7 later described by
commentators as "spirited," 8 "elegant," 9 and
"forceful." 10 He argued that product design could not be the
subject of trademark protection because of the potential for such protection to
interfere with patent law's careful balance between exclusive rights ...
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