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This chapter addresses the phenomenon of overlapping rights under US law and complements Chapter 25 authored by Professors Derclay and Ng-Loy on the overlap of trademark, copyright, and design protection under several other Common Law and Civil Law jurisdictions. Because the United States does not provide sui generis protection for industrial design, but instead protects design through trademark law (notably by protecting trade dress) and design patents, this chapter focuses on the overlap between trademark and copyright protection.1 The Lalique bottles created for Nina Ricci perfumes, for example, may enjoy both trademark and copyright protection in the United States.2 Similarly, cartoon characters are components of copyrightable works (and in some jurisdictions, may be copyrightable works in their own right),3 but many have also long been registered as trademarks for entertainment services or merchandise.4
Well before online shopping, advertising, and infringement, trademarks resisted territorial confinement. Thanks to mail-order deliveries, broadcasting spillovers, tourism, and immigration, marks might be used, or simply known, beyond their countries of registration.1 The Internet greatly amplifies a preexisting condition of international commerce. As other chapters in this volume detail, trademark law has developed substantive responses to unauthorized supranational exploitation of trademarks.2 This chapter addresses the phenomenon from a litigation perspective: what national court is competent to adjudicate a multiterritorial trademark dispute, and what law applies? While these questions precede e-commerce, the Internet has vastly multiplied their occurrence, thus augmenting the need for fair and predictable solutions.