Design Protection: An Overview

Abstract

The dominant concern of the law protecting designs of useful articles has been to keep design and utility separated. The easy recognition of exclusive rights in design, especially when that recognition flows from copyright, creates pressure for recognition of exclusive rights in the articles to which the design is applied, thus inhibiting imitation. Yet our system, in the interest of enhancing competition, allows and indeed encourages imitation, unless the imitated object is entitled to be immunized from copying by qualifying for a copyright, or for a patent, or for protection from competition that is legally considered unfair. To exemplify: Suppose that I market an orange-juice squeezer that effectively extracts juice, and that, thanks to a sleek design that I have made or bought, has an appearance pleasing to buyers of squeezers. I am not likely to accept with equanimity the display on an adjoining shelf of a squeezer that looks like mine and works like mine, especially if the price is lower. But ordinarily I would have no legal redress against the competitor. What he is doing is the purest form of competition, so long as he does not confuse the public by masquerading as me. As for my orange squeezer, I cannot get a patent and thus bar the competitor, because my squeezer, though efficient, is neither novel nor inventive. Nor can I get a design patent—for the ornamental design of a useful object—for similar reasons: my design, though attractive, is not distinctive enough to satisfy the Patent Office that I have made a significant advance in the art of designing orange squeezers.