While the mothers and fathers of EU design law were keenly aware of the marketing function of designs, they underestimated the potential for overlaps with trade mark and unfair competition law. From a semiotic perspective, distinguishing between the communication channels created by product shape trade marks and by product designs is next to impossible. EU and US trade mark law provide different exclusionary rules which aim at preventing eternal protection of designs through trade mark registration, but none of these approaches is entirely satisfactory. In unfair competition law, courts have the tendency to find misrepresentation as to source when designs are imitated and tend to frown upon imitation, even if designs become a part of the public domain after the expiry of the design right. This chapter proposes a combination of time-limited full design protection and a market-sensitive rule permanently proscribing actual confusion while excluding remedies against pure misappropriation or “constructive confusion” after the expiry of design protection.
The link between trade marks and innovation is less obvious than the role of patents as incentives for technological progress. But trade marks do play an essential role in a market economy. They create ‘channels of communication’, without which consumers could not make reliable distinctions between competing products and services. This information asymmetry would also undermine producers’ incentives to offer high quality and high image products. While the positive economic effects of protection against confusion seem to be generally accepted, the merits of antidilution and antimisappropriation provisions are less certain. Sometimes trade marks can even create obstacles to innovation. This chapter argues that policy makers and courts should be aware that trade marks are not fully fledged property rights over words or devices, and that their protection should remain restricted accordingly.