Consider Design Patents as One Mode of Protection for Product Appearance

In the world of industrial design and branding, the appearance or look and feel of a product can be subject to various forms of intellectual property (IP) protection.  Copyrights and trademarks usually come to mind when considering the appearance, imagery or look and feel of a product, but design patent protection should not be overlooked and can provide an important avenue for protection.  The saga of the cellphone litigation wars has brought to greater prominence the use of design patents on product appearance.

As stated in the patent statute, a design patent can be obtained for "a new, original and ornamental design for an article of manufacture."  Most products are certainly articles of manufacture, and the appearance of a product or portions of a product or its decoration can be the subject of a design patent.  Static and dynamic graphics and logos as displayed on a cellphone screen or other display may also be the subject of a design patent.

One form of IP protection does not exclude the other forms.  Often, design patents, copyrights and trademarks can be used in concert to protect aspects of product appearance.  As an example, a product shape may be design patented and also trademarked if the shape or trade dress of the product serves to identify the product source.  Or a product shape may be both copyrighted and design patented for its ornamental or artistic appearance.

A practical benefit of a design patent is the relative ease of obtaining one at relatively low cost.  Examination of design patent applications by the United States Patent and Trademark Office is less than rigorous and most applications proceed to grant.

While a design may be subject to both patent and copyright protection, design patents offer benefits not available for copyrights.  One notable benefit is that a design patent can be infringed with no proof of copying as required under the copyright law.  A patented design is infringed if to an ordinary observer an accused design appears substantially the same.  Another beneficial difference is that the fair use defense is not available to an accused design patent infringer, as it is for copyrights.

One should therefore consider design patents as one mode of protection for product appearance as well as copyright and trademark modes.