By: Nicholas P. Mack
This Note explores how the United States’ substantive law frustrates the purpose of an international procedural agreement. The Hague Agreement Concerning the International Registration of Industrial Designs revolutionized the process of applying for industrial design protections on a global scale. The Hague Agreement’s purpose is to support easily and efficiently acquired industrial design protections in contracting parties to the agreement by simplifying procedures for obtaining protection. The United States—a country without a coherent and dedicated industrial design law—joined this agreement with effect in 2015, allowing designers around the world to easily apply for industrial design protections in the United States. If this seems counterintuitive, that is because it is.
Because of this legal conundrum, the United States executes its responsibilities under the Hague Agreement by applying its design patent law to international industrial design applications. The United States’ imputation of design patent law onto industrial design applications firmly places it as an outlier among the rest of the world’s industrial design protection regimes. Not only are international designers unfamiliar with US design patent law, the added substantive requirements and associated ramifications of using a design patent standard to review industrial design applications confuses and impedes the international system. Thus, although global designers can now easily apply for design protections in the United States, these applications face challenges that are unknown to the rest of the world’s design regimes. Therefore, substantive harmonization shouldered by the contracting parties is the way forward for the Hague Agreement to better streamline the availability of design protections worldwide.