Perm do both solves best – IP law is best when it blends domestic and international consideration

It is increasingly impossible to analyze intellectual property law and policy without reference to international lawmaking. That is not, however, merely because several recent domestic reforms have been prompted by international developments.1 Indeed, because of significant U.S. influence in the formation of contemporary intellectual property treaties, U.S. law has undergone less change than most in order to comply with newly-assumed international obligations. Nor is it simply because, in an era of global trade and technological advances, a state is unable effectively to regulate economic activity on its own. Rather, the need for a broader awareness flows most directly from the integration of the international and domestic lawmaking processes. Consider this historical example. As nations met in Berlin in 1908 to revise the Berne Convention, the United States received an invitation to attend with “full freedom of action.”2 Instead, the Register of Copyrights attended only as an observer.3 The reason might now seem und uly quaint. Thorvald Solberg, the Register of Copyrights explained to the Conference that the United States found it impracticable to send a delegate authorized to commit it to actual adhesion to the Berne Convention since some of the questions to be discussed there were pending before the Congress and premature action at the Convention might embarrass the legislative branch of the Government.4 Today, in contrast, there is a conscious blending of domestic and international lawmaking. International lawmaking demands attention to Washington; and domestic lawmaking cannot be conducted without regard for what is going on in Brussels, Geneva, Tokyo, and elsewhere. Indeed, in some areas of intellectual property, we may be moving toward a single lawmaking process that embodies a series of complex relations among national, regional and global institutions and laws. Within the United States, this biplay between national and international fora – in particular, between executive branch activity at the international level, and legislative activity in Congress – has been treated by some with a certain suspicion.5 This interaction is, however, essential in a global age. And it should not be disconcerting. The Constitution sets out a process for concluding and ratifying treaties,6 and a separate process for enacting legislation.7 Each mechanism has its own limits. It would be somewhat surprising if each branch of government did not use the leverage with which it is endowed by the constitutional scheme. In any event, this blending or integration of lawmaking is a political reality of which we must take account in our assessment of how intellectual property law is made. This Essay addresses the operation of this integrated process in the fields of design and trade dress protection. I will focus on two primary issues, using examples drawn from recent developments in those fields. First, I will discuss the characteristics of what has arguably been the predominant form of international lawmaking in recent years, namely the process of harmonization; and, second, I will identify some current design or trade dress protection issues that may soon be part of this complex lawmaking process.