THE FUTURE OF DESIGN PROTECTION IN THE UNITED STATES: AN ANALYSIS OF THE PROPOSED DOMESTIC SYSTEM IN VIEW OF RECENT DEVELOPMENTS IN THE UNITED KINGDOM, NEW ZEALAND, AND AUSTRALIA

The concept of industrial design developed late in the nineteenth century.' With the advent of mass production, manufacturers realized that functional consumer products could be improved through the application of aesthetically pleasing design features. The practice of designing functional products with some thought to aesthetics, or "industrial design," was quickly accepted because aesthetically pleasing products outsold less attractive products in the marketplace. As the significance of good design became apparent, industrial designers saw a need to protect their creations from others who chose to copy successful designs so as to avoid the costs of development. In response, the industrial nations of the world have developed various forms of protection for industrial designs."

The United States has stood alone throughout this century with a singularly inadequate form of design protection. The design pat

1. Industrial design has its roots in the division of design and production which occurred during the Industrial Revolution. Before that time, design and production had been united in the individual craftsman. The first attempt to reunite manufacture and design in the industrial age arose out of the Arts and Crafts movement in late nineteenth century England. Craftsmen "revolted against the derivative cheapness and ugliness of machine-made products and attempted to resurrect the ideals of good craftsmanship by resurrecting the craftsman himself." R. CAPLAN, BY DESIGN 40 (1982).

The Arts and Crafts movement did not succeed in turning back the clock, but it did force manufacturers to think anew about how machine-made products should look. The initial response of industry was to reintroduce design in the form of "applied art," art that was literally applied to a product at the end of the production process. Applied art has remained as one approach to design, but industrial design took its greatest step forward with the formation of the Bauhaus in the early 1920's. The Bauhaus emphasized the importance of geometry, precision, simplicity, and economy, and introduced the maxim that form should follow function. See generally id. at 32-33, 39-40; C. Lorenz, The Design DimensioN 10-24 (1986).

2. "Between two products equal in price, function, and quality, the better looking will outsell the other." R. Loewy, Industrial Design 10 (1979).

3. Summaries of the design protection laws throughout the world are readily available. See, e.g., Manual for the Handling of Applications for Patents, Designs and Trade Marks throughout the World (Octrooibureau los en Stigter, Amsterdam) (1986). The legal and economic significance of protection by designs and models has recently received extended consideration from the Association Internationale pour la Protection de la Propriete Industrielle (AIPPI). See AIPPI Annuaire 1985/III.

4. See 133 CONG. Rɛc. E49 (daily ed. Jan. 7, 1987) (introductory remarks of