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15 Temp. Envtl. L. & Tech. J. 123 (1996)
When Patent and Trademark Law Hit the Fan: Potential Effects of Vornado Air Circulation Systems, Inc,. v. Duracraft Corp. on Legal Protection for Industrial Design

handle is hein.journals/tempnlt15 and id is 129 raw text is: WHEN PATENT AND TRADEMARK LAW HIT THE FAN: Potential Effects of Vornado Air Circulation Systems, Inc, v. Duracraft Corp.' on Legal Protection for Industrial Design INTRODUCTION Patent law and trademark law protect aspects of consumer products which in pre-industrial times were distinct, but which today are often inseparable. The Patent Clause of the U.S. Constitution2 and its federal implementing Act3 were written with the express purpose of rewarding inventors4 with a monop- oly on production of their inventions.5 To balance that benefit, the law encour- ages free competition by making that monopoly brief,6 allowing others to produce the invention once the patent expires. Trademark law, rooted in Eng- lish common law,7 protects producers by restricting others from using their product-identifying trademarks.8 The law is intended to protect consumers from confusion in the marketplace, by preventing others from usurping a pro- ducer's good name.9 Patent and trademark law effectively protect intellectual property which falls neatly within their respective limits. However, infringement disputes arise when a product's key utilitarian elements are key visual elements as well.10 When the line between utilitarian invention and a product-identifying visual feature is not clear, neither patent law nor trademark law alone will settle a dispute. In the field of industrial design, these disputes are endemic. The need for producers to package utilitarian inventions into attractive, mar- ketable products spawned the field of industrial design. However, no legal doctrine emerged to regulate and protect industrial design with the specificity that patent law addresses to invention, trademark law applies to the market- place, and copyright applies to literary work. Courts and legislatures have wrestled for decades with the problem of indus- trial design protection, to little avail. There is little consistency, court-to-court or decision-to-decision, regarding the scope of legal protection for industrial design. State laws against unfair competition offer some relief on a local 158 F.3d 1498 (July 5, 1995), cert. denied, 64 USLW 3458, 64 USLW 3467 (Jan. 8, 1996). 2U.S. CONSTITUTION, art. I, § 8, cl. 8. 3Patent Act, 1 Stat. 109, 110 (1790); as reissued, 1 Stat. 318, 319 (1793). 4At the time of the drafting of this legislation, the ranks of accomplished American inventors included Benjamin Franklin and Thomas Jefferson. These pre-industrial Renaissance men in- vented dozens of useful devices, including a free-standing iron stove, the prototype of the 'Frank- lin stove' still produced today, and a weathervane at Monticello which can be read from indoors. See generally DUMAS MALONE, 6 JEFFERSON AND HIS TIME: THE SAGE OF MONTICELLO (Little, Brown and Co. 1981). 535 U.S.C. § 154. A United States patent gives the holder the right to exclude others from making, using, or selling that invention without permission. 615 U.S.C. §§ 154-56. Seventeen years for utility patents, fourteen years for design patents. 7See generally 1 MCCARTHY ON TRADEMARK AND UNFAIR COMPETITION (3d. ed. 1994). 8For example, the Bass Ale red triangle, the world's oldest mark, was registered in England in 1777. See generally FRANK I. SCHECHTER, THE HISTORICAL FOUNDATION OF THE LAW RELAT- ING TO TRADEMARKS (Columbia Univ. Press 1925). 915 U.S.C. 1125(a). 10For example, the rotating round cover and center dial of a household thermostat. See In re Honeywell, 532 F.2d 180 (C.C.P.A. 1976).

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