Shook Associate Benjamin Patton has authored an article for Boating Industry on the Vessel Hull Design Protection Act (VHDPA), a seemingly abandoned 1998 law intended to provide boat manufacturers with intellectual property rights to their hull and deck designs. The most recent VHDPA registration was in 2013, Patton explains, and the act has been the basis for only one lawsuit, which the Eleventh Circuit decided in 2005.
Patton suggests several theories as to why the VHDPA has been ignored. For example, boat manufacturers may seek protection for their boats with design or utility patents rather than VHDPA registration; however, the patent process is more expensive, and a VHDPA registration could supplement patent registration. “If boat builders are now turning to patents for protection, then the law is no longer serving its original intent and the VHDPA is a failure,” he notes.
Boat builders may also be frightened off by the potential inadequacies of the law, Patton suggests. The 2005 VHDPA case did not turn out well for the plaintiff, he explains, and it resulted in financial penalties in the form of litigation fees and costs. Finally, boat manufacturers might simply be unaware of the law and the protections it could offer, Patton writes. “With advancements in technology, people are able to pick up boat building as a hobby and turn it into a very profitable business. As is often the case for startup-like businesses, there are often bigger fish to fry than IP protection.”
Moving forward, it will be interesting to see if any boat builders decide to register designs or bring infringement actions under the Act,” Patton concludes. “The lack of success of the VHDPA might lead some to believe that sui generis protection in other industries, such as fashion and clothing design, might also be a disappointment.”