Design and trade dress : the importance of appearance ; a comparative perspective within Europe and beyond

Abstract

Industrial design has created one of the most complex puzzle within the framework of intellectual property institutes. The international system does not provide a minimum standard to limit the discretion at national level neither in legislative nor in jurisprudential sense. There are two options: either continuing to allow protection of shapes without boundaries, therefore creating legal hybrids in a framework which allows for the adjustment of provisions over concrete individual cases, or it shall draw a clearly defined boundary which may not be overlapped in order to avoid lowering the thresholds of protection. This article intends to briefly illustrate some legislative solutions States have adopted to tackle this issue. From Europe to USA, from China to Japan, in a global perspective the same question remains: where should Judges draw the boundary line when faced with an innovative product has the same individualizing characteristics of another? What happens mostly when two fields of legislation overlaps and applicative standards divide the opinion of the courts?