Book Title: The Cambridge Handbook on International and Comparative Trademark law

Publisher: Cambridge University Press

Abstract: The overlap between trademark law and copyright or design law has grown with the extension of trademark protection for subject matter that was traditionally protected only by copyright and/or design law. This extension has been triggered not only by international initiatives (Article 15(1) of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement) but also by prior national and regional initiatives (e.g., Article 2 of the 1988 EU Trademark Directive). This piece focuses on one specific area of overlap, namely, the overlap of protection for ornamental three-dimensional shapes. It examines these questions: should there be trademark protection for an ornamental shape of a product which is also protected or had previously been protected by copyright or design law? How has this question been answered by the legislatures and/or judges in the civil law world and in the common law world?