Abstract
This Essay uses a comparative framework to show that sophisticated design rights holders in both the United States (U.S.) and the European Union (EU) increasingly sidestep specialized design regimes in favor of more expansive trademark and copyright doctrines. Although both jurisdictions now operate cumulative intellectual property (IP) systems for industrial design, they have taken sharply divergent paths in confronting the proliferation of “design dupes”—replicas that trade on the appeal of sought-after designs. In the United States, rights holders rely chiefly on trademark law, and especially trade dress, to convert cultural recognition into legally cognizable source indication, a move facilitated by a permissive approach to secondary meaning. In the European Union, by contrast, recent harmonization efforts have positioned copyright as the dominant vehicle for design protection, with courts steadily discarding separability constraints that once narrowed the scope of copyrightable design features. Together, these developments reveal how design protection is being built through adjacent IP doctrines rather than through design law itself.
External Links
https://www.floridalawreview.com/article/154670-how-design-law-is-taking-shape-in-the-united-states-and-european-union
Repository Citation
Christine H. Farley,
How Design Law is Taking Shape in the United States and European Union,
77
Fla. L. Rev.
103
(2025).
Available at:
https://digitalcommons.wcl.american.edu/facsch_lawrev/2340
Included in
Business Organizations Law Commons, Comparative and Foreign Law Commons, Consumer Protection Law Commons, European Law Commons, Intellectual Property Law Commons