Claiming Design - Mark McKenna

Please join from 10:30-11:45AM on Friday, October 13th, for the latest entry in Boston University School of Law’s IP Speaker Series. Prof. Mark McKenna will be presenting a paper he co-authored with Prof. Jeanne Fromer, entitled “Claiming Design.” Please RSVP to tgabs@bu.edu Under American law, design can be protected under at least three different regimes: trademark, design patent, and copyright. These regimes are not exclusive, meaning that claimants can, and very frequently do, claim multiple forms of design protection simultaneously. But each of these regimes has different claiming rules, and these differences can matter for the scope of the rights in the design at issue, and in shaping legal and business incentives. This paper (1) explores the content and the method of claiming across these regimes, (2) describes the costs of claiming inconsistencies, and (3) introduces the possibility of uniform claiming principles that might smooth out inconsistencies while allowing protection under multiple regimes.