Despite the label, incontestable marks can still be contested. An accused infringer can always argue that they are not actually infringing the mark at all due to the respective mark differences, the differences in use or commercial impression, etc. However, there are also a variety of ways that a challenger can invalidate the incontestable mark. One method of contesting these sorts of marks is through a functionality argument. A functionality argument states that the putative mark actually serves some functional purpose with regard to the good being sold, and that letting someone trademark the functional item puts competitors at a disadvantage.
What is a "functionality argument," and how could it put you at a disadvantage when contesting Trademarks?
Learn more about Trademark Protection.
In addition to Thriving Attorney, Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charity devoted to changing the world one random act of kindness at a time. Click to read more about Darin Klemchuk's practice as an intellectual property lawyer.