[*]John Richards is a partner resident in the New York office of Ladas & Parry. Copyright 2002 John Richards. All rights reserved.

[1] For much of the twentieth century, design protection was very much the poor relation of the big three intellectual property types, patents, copyrights and designs. Now all three tend to see designs as part of their domain. The main international conventions say little about designs. The Paris Convention on Industrial Property makes only a few mentions of design protection beyond the basic provision in Article 5 ^quinquies that "Industrial designs shall be protected in all countries of the Union." The Berne Convention avoids the issue of what the law should be in this area. Berne does, however, provide minimum standards for a variety of copyright concepts, in the design field, by providing that as long as they provide a 25-year minimum period of protection for works of applied art, member states can decide the extent to which and the conditions under which works of applied art, designs and models shall be protected that if a work is protected in its country of origin only by way of design or model protection it is entitled to be protected in other countries only by "such special protection as is granted in that country to designs and models", unless there is no such protection, in which case the design etc. should be protected as an artistic work. GATT-TRIPS simply requires that all members shall provide for protection of independently created "new or original" designs but provides that countries may make an exception in the case of "designs dictated essentially by technical or functional considerations."