Protección de las creaciones de forma (análisis jurídico de los límites entre el diseño, la marca, el derecho de autor y la competencia desleal)

This paper deals with setting the boundaries for the legal protection of shape creation in what is conferred by Intellectual Property Right (Trademark Law, industrial design law and copyright) and the law against unfair competition under the Spanish jurisprudence and that of the CJEU. It is herewith defended that the accumulation of legal protection offered by the above-mentioned regulations whenever the object of protection has a requirement, its “singularity”, and a limit, its “functionality”. Originality in Copyright, the distinctiveness – and acquired distinctiveness- in Trademark Law, the individual character in Design Law and competitive singularity in unfair imitation are all expressions of the singularity requirement. The technical function of the works of applied art, design and three-dimensional trademarks, the aesthetic function of the trademarks and the unavoidability in unfair imitation configure different meanings in the limit of functionality. Both concepts, singularity and functionality, common to different legal protections, operate within a different reach in every one of them and their concrete configuring defines the boundaries of the accumulation of legal protections of a creation of shape.