Overlapping DA --- the two legal frameworks cancel each other out and GUT ANY PROTECTIONS

(Laura, Professor of Law, College of William & Mary, “Overlapping Intellectual Property Doctrines: Election of Rights versus Selection of Remedies,” pg online @ https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2759&context=facpubs //pa-ef)

From an intellectual property owner’s perspective, the overlap between or among regimes is not typically a cause for concern. Seeking protection under more than one regime is a belt-and-suspenders form of enforcement, allowing the intellectual property owner to resort to a second mode of protection should the first fail or expire. But from an intellectual property user’s perspective, overlapping protection schemes can make it more difficult for competitors to determine what they can do. Material that is the subject of an expired design patent, which patent law would put in the public domain, may not be free to use without restrictions if courts vindicate continuing trade dress rights in that same material. When this occurs, it is not surprising that an intellectual property user would feel as if the end of the design patent term has little practical effect. Courts could, of course, choose to do nothing on the grounds that since the doctrines permit an overlap of rights, it would be improper to impose a limitation. This approach, however, is unsatisfying, as it minimizes very real concerns about the proper scope of intellectual property protection. Alternatively, courts could, as some commentators have suggested,1 require intellectual property owners to elect among doctrines—that is, to choose at the outset which form of protection they will employ or to relinquish rights in one form if another is chosen. Requiring the intellectual property owner to elect among doctrines, however, is difficult to square with the existing federal intellectual property scheme, in which Congress has contemplated that overlapping rights will exist. Moreover, requiring commitment to only one form of protection, whether explicitly or by default, requires careful consideration of the nature of future uses, income streams, and doctrinal contours, all of which may be difficult to predict ab initio. The courts, for their part, have presented what on their face seem to be mixed messages in this regard. Many courts, including the U.S. Supreme Court, have held that there is no reason to limit intellectual property owners to one regime—that simply because something is eligible for copyright protection does not mean that it isn’t also eligible for design patent protection. On the other hand, many courts—again, including the U.S. Supreme Court—have rejected attempts by intellectual property owners to assert another form of intellectual property protection once one form is unavailable for particular subject matter.2