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Stacey Dogan

In an era of increased harmonization of intellectual property laws worldwide, the United States’ treatment of product design looks like an anomaly. Since the European Community Design System went into effect in 2002, advocates in the United States have urged Congress to follow suit and adopt sui generis design protection, particularly for fashion. The US Congress, however, has resisted the call and left design protection to the existing standards of trademark, copyright, and design patent law. This chapter explores some of the reasons that the Community Design System has had so little purchase in US debates over design. The rejection of design rights has resulted from both substantive and pragmatic concerns. The substantive concerns include the utilitarian tradition of US intellectual property law, with its ostensible preference for competition over exclusivity; as a practical matter, definitional problems, enforcement concerns, and political economy considerations have also played a role. The absence of sui generis design protection does not, however, mean an absence of legal protection for design. Despite its practical and theoretical hurdles, there is broad intuitive appeal to the notion that creative designers deserve some form of protection against copying. At times, this has led courts to find outlets for design protection under copyright and trademark/unfair competition law. Design patent law, moreover, which saw little action through the twentieth century, has recently emerged as a popular form of protection for certain types of design. These developments have reduced the perceived urgency of the call for sui generis rights; together with the philosophical and practical concerns discussed above, they help to explain why the calls for a US version of the Community Design System have gone unanswered.

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Stacey L. Dogan and Mark A. Lemley