Solves overenforcement/court clog/trolls
Kazeeva 24 [Iana Kazeeva is a postdoctoral researcher at the Department of Innovation and Digitalisation in Law at the University of Vienna. She studied international commercial and tax law in Moscow and holds a Candidate of Sciences degree (Ph.D. equivalent) in international financial law (dissertation on fiscal decentralization). Prior to joining the Department, she worked at the Mountain View office of a California-based public software-as-a-service company, primarily engaged in reviewing and negotiating technology and commercial contracts. She also gained practical experience as a senior legal counsel at the legal department of a global producer of mineral fertilizers, focusing on project finance and legal compliance. At the Department, the primary focus of her research is on intellectual property, data security, and data protection law., Sui Generis Intellectual Property Protection Comparison of EU and U.S. Regulatory Perspectives in Law, Business and Innovation, ALB]
Indeed, the mentioned categories of subject matter can be protected by a combination of the standard intellectual property regimes. For instance, an ornamental feature of a design can be protected by a design patent, by copyright as the author’s expression, and by trademark law (in the form of a trade dress) as a source indicator. However, the overlapping rights make it difficult for intellectual property users to determine the scope of such different rights, particularly when those rights have different terms or limitations. In order to resolve this issue, some scholars suggested that courts should require intellectual property owners to choose the right they want enforced or follow the requirements of the regime whose protection term expires first. Besides, although the courts might not object to invoking overlapping intellectual property regimes as long as the requirements for each regime are met, it is not clear to what extent a particular intellectual property right should be enforced. Therefore, such doctrinal overlap presents a temptation to intellectual property owners to push for even stronger protection of their intellectual property rights.33
Another possible instrument of protection is the unfair competition laws. However, unfair competition laws are a completely different legal concept and are applicable only in certain situations and therefore do not provide enough protection. In particular, the law of unfair competition is only applicable in competitive situations, whereas the sui generis right also covers acts committed in non-competitive situations. Besides, the law of unfair competition sanctions unfair behavior a posteriori, whereas the sui generis rights create rights a priori and grant a term of protection.34
Thus, the legal gaps in the existing intellectual property legal regimes prompt the creation of special legal regimes of protection of intellectual property. Usually created for specific categories of subject matter, such sui generis rights have been the subject of much controversy as to their legal nature and their place in the intellectual property legal framework, as will be discussed in further detail in the following section.