Good Design: A Proposal for the Proper Protection of Market-Entry Industrial Design

Susanna Monseau, The College of New Jersey

Abstract

Empirical research tells us that “[d]esign led companies have produced dramatically better share price performance for their investors.” However, in the U.S., in contrast to all European and the majority of other countries around the world, the legal system provides no specific protection for market-entry design. There is starting to be an appreciation of the importance of design to the economy and how the rise in counterfeit activity hurts designers. This paper argues that this rise in counterfeiting and piracy mean that it is important for Congress to finally create a limited protection for industrial design under U.S. law. It reviews current principles of design protection and international harmonization efforts to outline how it is possible to develop a sui generis design protection based upon existing legal principles of U.S. and international law. It explains the rationale for protection and proposes that the legislation should provide an unregistered limited protection against copying for all market-entry industrial design following the principles of protection found in international law and especially in key aspects of the European unregistered design right. The paper argues that this new law would benefit society, consumers and designers.