The Convergence of Design Patent Law, Trademark Law, and Copyright Law for Better Protection of Intellectual Property for Commercial Designs.

Author:Sebastián M. Torres Rodríguez
Pages:122-152
 
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THE CONVERGENCE OF DESIGN PATENT LAW, TRADEMARK LAW,
AND COPYRIGHT LAW FOR BETTER PROTECTION OF
INTELLECTUAL PROPERTY FOR COMMERCIAL DESIGNS
*SEBASTIÁN M. TORRES RODRÍGUEZ
I. Introduction ................................................................................................................. 122
II. What are Copyrights, Trademarks and Design Patents? ............................ 124
A. Copyrights ............................................................................................................... 126
B. Trademarks ............................................................................................................ 130
C. Patents and Design Patents .............................................................................. 135
III. An Introduction to Protection Overlapping ............................................... 138
A. Overlaps between Copyrights and Design Patent .................................... 139
B. Overlaps between Trademarks and Design Patent ................................. 141
C. Overlaps between all three forms of federal protection ....................... 147
D. Problems of overlapping ................................................................................... 148
IV. Conclusion ............................................................................................................... 151
I. INTRODUCTION
Products, services, and brands cover all aspects of modern life. In
order to be successful among costumers, it is vital to take into consideration
their appearance and ornamental design, as well as their utility and
functional elements. As CIBC (put the entire word and not just the
abbreviation) Professor of Entrepreneurship and e-Commerce at the
Wharton School of the University of Pennsylvania, Karl T. Ulrich, expounds:
Let me cite three reasons, giving a preview of a theory of aesthetics
to follow. All other things equal, most users will prefer a beautiful
artifact to an ugly one, even in highly functional domains such as
scientific instruments. Thus, beauty can be thought of as “just
another attribute” in a user’s evaluation of preference, alongside
durability, ease of use, cost, and safety. In this respect, the aesthetic
No. 2
The Convergence of Design Patent Law,
Trademark Law, and Copyright Law for Better
Protection of Intellectual Property for
Commercial Designs
123
quality of an artifact is an important factor in providing a satisfying
user experience, the prime motive for design.
1
Big companies invest a large percentage of their budget on research
and product development in order to keep up with technological advances.
This way, they can get an advantage in the market place and surpass their
competition. Accordingly, companies engage in a process known as Research
and Product Development (R&D) in order to transform their market
opportunities and ideas into profitable market products.
2
R&D is defined as
“the process of acquiring knowledge to create a new product to serve the
needs and wants of customers who are already buying a company's
products”
3
or as the process of acquiring new clients. The R&D process is
costly and can take an effort of years; in fact, a magazine specialized in
business and industrial innovation, Battelle’s R&D Magazine, forecasted that
U.S. research and development expenditures will grow by slightly more than
two percent from 2011, with an estimate of $427.2 billion, to $436.0 billion
in 2012.
4
In today’s technologically driven world, the speed of innovation and
product development grows at a faster pace. For the purpose of this article,
commercial design will be defined as “the process concerned with planning,
*Sebastián M. Torres Rodríguez is currently an Associate Attorney at Estrella LLC, a full-
service law firm in San Juan, Puerto Rico. Mr. Torres graduated Magna Cum Laude from the
University of Puerto Rico in 2010, with a Ba chelor’s Degree in Journalism, Public Relations
and Advertising. He earned his Juris Doctor, Magna Cum Laude, from the University of Puerto
Rico School of Law in 2013 . During his time in Law School, Mr. Torres was selected a s a
Teaching and Research As sistant by renowned professor José Julián Álvarez Gónzalez. While
in law school, he was also selected to be part of the Volume LXXXII of the University of
Puerto Rico Law Revi ew as a Copy Editor. Likewise, he participated in the XIX Miguel
Velázquez Rivera Intercollegiate and Intramural legal comp etitions, where he won in both
oral argument competitions pertaining to Employment & Labor Law, Constitutional Law,
Tort Law and Family Law. Mr. Torres has al so worked as a journalist and live news reporter
for various mass media outlets.
1
KARL T. ULRICH, DESIGN: CREATION OF ARTIFACTS IN SOCIETY 97 (2011), a vailable at
http://opim.wharton.upenn.edu/~ulrich/ulrichbook-10Aug12.pdf.
2
See Vish Krishnan & Karl T. Ulrich, Product Development Decisions: A Review of the
Literature, Management Science, 47 MGMT. SCI. 1 (2001), available at http://www.ktulrich
.com/uploads/6/1/7/1/6171812/pdreview.pdf.
3
L.G. Mohamed, The Significance of Product Deve lopment to Firm Competitiveness: A Case of
Plastic Product Firms in Ekurhuleni, ANNUAL FORUM 2005, TRADE AND UNEVEN DEVELOPMENT:
OPPORTUNITIES AND CHALLENGES 775-2 (2005), available at http://ww w.tips.org.za/files/
775.pdf.
4
See BATELLE WITH R&D MAGAZINE, 2012 GLOBAL R&D FUNDING FORECAST ( 2011), available at
http://battelle.org/docs/default-document library/2012_global_forecas t.pdf.

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