NEW VESSEL HULL DESIGN PROTECTION ACT

Public Law No. 105-304 (October 28, 1998)

Introductory Report and Legislative History Resources

William T. Fryer, III

Decenber 23, 1998

Many design owners have asked for immediate protection at the time of introducing a product. The semi-conductor chip industry received a special law with this protection (Semi-Conductor Chip Act of 1984, 17 U.S.C. §§ 901-914). Now boat manufacturers have a new law, the Vessel Hull Design Protection Act [link to the current law - ENR text], to provide market entry protection. As further background, the Vessel Hull legislation was part (Title VI) of a larger bill, Digital Millennium Copyright Act, that implementated important Copyright Treaties (H.R. 2281, 105th Cong., 2d Sess.).

The new Vessel Hull Design Protection Act was based, essentially, on the general design bill that was considered by Congress several times without enactment, most recently in 1991 (H.R. 1790, 102d Cong., 2d Sess.). The general design protection bill provided protection against copying for a wide group of products, with some exclusions to minimize controversy. Several safeguard provisions limited who would be an infringer and prevented litigation abuse. Registration was required after one year from the time of market entry, to continue protection for the full term of 10 years. Only a relatively minimum level of novelty was required.

In summary, the Vessel Hull law will provide protection for hull shape and decks from the time of market entry. The new law will exclude protection of features that are dictated solely by function, while allowing for protection of variations that do not serve to give a functional competitive advantage. The Copyright Office will administer the law. Registration will be required under the new law within two years of the time a product enters the market, or by registration before market entry.

The new legislation was signed by the President on October 28, 1998, and became effective on that date. Boat hulls and decks are now protected from copying upon market entry or by registration. The Vessel Hull law will sunset in two years, giving Congress an opportunity to reconsider whether to continue the protection. After the first year and before the end of the two year period the Copyright Office and the Patent and Trademark Office are required to prepare a joint report evaluating the impact of the legislation. This compromise was necessary, in part, due to the fact that the Senate did not hold hearings on the bill and the House conference delegation wanted the legislation enacted.

There are many details to the Vessel Hull legislation that cannot be addressed in this brief report. Reference is made to the testimony at a October 23, 1998, hearing held on H. R. 2652, 105th Cong., 1st Sess, before the House Judiciary, Subcommittee on Courts and Intellectual Property, by Professor Fryer and representatives of the boat manufacturing industry (see legislative history resource list below).

The Vessel Hull legislation will create an exciting two years for design protection review. It is the opportunity needed to evaluate the effectiveness of market entry design protection using a relative simple registration system, and to evaluate similar protection that is now present in a growing number of countries. At the same time, the opportunity is presented to determine what other important product industrial designs need this market entry protection.

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Legislative History Resources for the Vessel Hull Design Protection Act

H. R. 2696 (105th Cong., 1st Sess.) (text Code IH) - Original Legislation in the House, filed on October 23, 1997.

House Hearing on H. R. 2696, October 23, 1997

Panel I

Marybeth Peters - Register of U. S. Copyright Office

William T. Fryer, III - Professor University of Baltimore School of Law - House web site - http://www.house.gov/judiciary/41114.htm

Panel II

Mick Blackistone, Vice President Government Relations, National Marine Manufacturers Association (NMMA)

Don Cramer, Corporate Counsel, Bayliner Marine Corporation

J. J. Marie, President, Zodiak of North America, Inc.

H. R. 2696, Amended, passed by the House (text code RFS).

House/Senate Conference Report 105-796 on H. R. 2281 (105th Cong., 2d Sess., October 8, 1998), incorporating text of H. R. 2696 as Title VI, Congressional Record October 2, 1998.

H. R. 2281 (text code ENR) - Bill sent to the President and signed; legislation effective October 28, 1998.

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