The Vessel Hull Design Protection Act of 1998: is it still afloat?

Abstract

Legal context. The Vessel Hull Design Protection Act (‘VHDPA’ or ‘Act’) is a unique form of industrial design protection under US law, part of the Digital Millennium Copyright Act 1998. Congress provided this sui generis form of protection in response to the Supreme Court's decision in Bonito Boats v Thunder CraftBoats, Inc. This statute has been underutilized due to the difficulty in proving infringement, as unintended consequences were caused by the way ‘hull’ was originally defined under the Act. A bill is pending in Congress that addresses how a ‘hull’ is defined, eliminating any inclusion of ‘deck’ features, when passed, registrants should be able to pursue infringers with greater success. Key points. The recreational boat manufacturing industry has been plagued by low-cost boat makers who think nothing of taking a competitor's boat hull design, and using it as a ‘plug’ to make a casting for their own unauthorized manufacturing use, a counterfeiting technique known in the trade as ‘splashing’ a hull. In the eight years since enactment, the boating industry has generally overlooked this form of intellectual property protection due to the difficulty in proving infringement—that is likely to change soon. Practical significance. The Act includes the right to exclude others from making, having made, importing, offering for sale, or using in any trade, any boat hull embodying the protected hull design. The Act provides compensatory recovery for damages as well as injunctive relief. The newly revised Act has the potential to provide a low-cost and effective form of intellectual property protection for recreational boat manufacturers who build hulls from moulded fibreglass or similar materials.