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Function, Art and Fashion: Do We Need the EU Design Law?

23 Pages Posted: 17 Oct 2011 Last revised: 27 Oct 2011

Uma Suthersanen

Queen Mary University of London, School of Law

Date Written: October 17, 2011


Intellectual property law is premised on the protection of inventions (patent), literary and artistic property (copyright), and signs (trade mark). Sui generis rights, such as design law, stand outside this fortress and are constantly questioned and re-shaped. One reason why sui generis rights are questionable is that they protect “difficult” subject matter which defy disciplinary and legal boundaries. A prime example of such a sui generis right is “design law”, which has had a tumultuous legislative history since its inception in the eighteenth century. The "design law" debate has centred around three inherent problems. First, there is little consensus as to the nature of protection, and whether it should be considered as industrial property or artisticproperty, or industrial copyright. Secondly, the law has traditionally been befuddled by attempts to instill a functionality doctrine in order to draw clear parameters between art (visually relevant designs) and function (technically dictated designs). Thirdly, there is a tendency to negate copyright protection of designs based on a similar art/function dichotomy. The EU design regime was to be a new approach where designs would be protected as both industrial property (registration) or as copyright (unregistered rights). Moreover, national copyright law was to be applicable despite the existence of sui generis design protection in the EU. This approach has fundamental flaws. The purpose of this paper is to examine the concepts of “design”, “artistic work and “functionality” and suggest that we may need to review the current EU design regime in light of past and recent case law.

Suggested Citation

Suthersanen, Uma, Function, Art and Fashion: Do We Need the EU Design Law? (October 17, 2011). Queen Mary School of Law Legal Studies Research Paper No. 88/2011. Available at SSRN:

Uma Suthersanen (Contact Author)

Queen Mary University of London, School of Law ( email )

67-69 Lincoln’s Inn Fields
London, WC2A 3JB
United Kingdom

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