Abstract

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.