[The IPKat] Fordham 33 (Report 3): Top 5 Takeaways: The Global Divide in Design Protection
Annsley Merelle Ward
A perfectly designed panel on design protectionThe IPKat is back in Fordham, with the Spring skies and the chirping birds gracing the streets of the Upper West Side. As a proud and long-standing partner with the Fordham IP Conference, now in its 33rd year, the IPKat is thrilled to partner with the students of Fordham for reports from this years’ conference. This report comes from Seth B. Pearson (First Year Student of Penn State Dickinson Law).
Over to Seth:
"To close out Thursday’s programming, Blended Session 4D: Designs delivered a stark reality check. When it comes to design protection, the U.S. and Europe are operating in completely different realities. Moderated by Ron Lazebnik (Fordham University School of Law, the panel featured Kenneth Anand (Jayaram Law), Guillaume Henry (Szleper | Henry | Naumann), Adam Kelly (Venable), Susan Scafidi (Fordham University School of Law), and David Stone (White & Case), who expertly unpacked the strategic divergence in global design law and the mounting challenges of enforcement. All views expressed on the panel were their personal views.
Here are the top five takeaways from the discussion:
1. The U.S. Patchwork vs. EU Efficiency: In the U.S., design protection is a complicated, expensive mix of design patents, trade dress, and copyright. By contrast, the EU system is shockingly fast and inexpensive. Stone pointed out that a brand can file a sui generis design registration with the EUIPO in the morning and have a certificate by the afternoon—for roughly the cost of a cup of coffee. To bridge these global procedural gaps, Henry highlighted the 2024 Design Law Treaty. While it is too early to evaluate its full effectiveness, it represents a major step toward harmonizing global application standards.
2. Trade Dress is the New Frontier for U.S. Fashion: Since U.S. design patents are too slow to keep up with fashion's three-week "drop culture," brands are stretching the boundaries of trade dress. Scafidi highlighted the recent Lululemon v. Costco litigation as a prime example where Lululemon sued Costco in 2025, alleging trademark infringement over similar designs. While Lululemon is asserting design patents in the case, they are heavily pushing the limits of unregistered trade dress protection to stop the warehouse giant, making it a critical test case for the apparel industry.
3. The Rise of the "Dupe" Economy: The cultural shift towards "dupes"—products explicitly marketed as aesthetic alternatives to luxury goods without directly copying logos—is forcing a legal pivot. Because these items deliberately avoid traditional trademark infringement, European enforcement is increasingly shifting toward claims of post-sale misrepresentation and "passing off" to combat the lack of consumer stigma around buying knockoffs.
4. The Enduring "Functionality" Battleground: In the U.S., functional designs are strictly barred from protection, forcing courts into complex "aesthetic functionality" analyses. While the EU also denies protection for features dictated solely by technical function, aesthetic choices in functional items (like the specific curvature of a smartphone corner) can still be protected. However, enforcing those EU rights requires proving infringement from the perspective of a highly specific legal fiction: the "informed user."
5. Cultural Appropriation Demands New Framework: Traditional design law fails indigenous communities because the IP system requires identifiable individual or corporate creators, not generational heritage. Scafidi and Anand noted that the solution is coming from the periphery of IP law. We are seeing a rise in alternative protections like geographical indications (GIs), certification marks, strict national legislation (like Mexico's recent federal laws), and Australian-style licensing protocols based on community respect.
In conclusion, the divide between U.S. complexity and European efficiency in design protection has never been more apparent. As fashion cycles accelerate and the "dupe" economy thrives, the legal landscape must evolve. Moving forward, the industry requires more than just traditional IP standards. It demands adaptive, agile frameworks capable of safeguarding both commercial innovation and cultural heritage in an increasingly globalized market."