Notre Dame Law School NDLScholarship Journal Articles Publications 2018 Claiming Design Mark McKenna Notre Dame Law School,
[email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Intellectual Property Law Commons Recommended Citation Mark McKenna, Claiming Design, 167 U. Pa. L. Rev. 123 (2018). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1351 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact
[email protected]. ARTICLE CLAIMING DESIGN JEANNE C. FROMERt & MARK P. MCKENNAtt Design stands out among intellectualproperty subject matter in terms of the extent of overlapping protection available. Different forms of intellectual property usually protect different aspects of a product. In the design context, however, precisely the same features are often subject to design patent, trademark, and copyright protection-andparties commonly claim more than one of those forms. Yet, as we show, the claiming regimes of these threeforms of design protection differ in significant ways: the timing of claims; claimformat (particularlywhether the claims are visual or verbal); the multiplicity of claims (whether and how one can make multiple claims to the same design); and the level of abstractionat which parties claim rights. These methodological differences have significant effects on the operation of each individual regime. All of the claiming regimes have significant shortcomings, particularly in terms of the quality of notice the claims provide to third parties about their scope. That notice problem is worsened, as we argue, by the frequent cumulation of rights t Professor of Law, New York University School of Law; Co-Director, Engelberg Center on Innovation Law & Policy.