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, such as the original Coca-Cola bottle. 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.
News and commentary from the Intellectual Property attorneys at Preti Flaherty.
Showing posts with label design patents. Show all posts
Showing posts with label design patents. Show all posts
Consider Design Patents as One Mode of Protection for Product Appearance
Friday, April 11, 2014
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.
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.
Protect Your Boat Hull Designs Under Copyright Law
Monday, February 24, 2014
Boat vessel hull designs can be protected by design registration under less well known provisions of the United States Copyright Law, 17 U.S.C. 1301-1332.
This design registration protects a vessel hull, deck or combination of hull and deck, which is an original design that is attractive or distinctive in appearance. The law also covers plugs and molds for making hulls and decks. Protection is for a ten year term commencing on the date when the vessel is publicly exhibited, distributed, offered for sale or sold, and an application for design registration must be made within two years from the date when the vessel was first publicly exhibited, offered for sale or sold.
Notice for a protected design is similar to a copyright notice and comprises any of the following notations “Protected Design”, “Prot’d Des”, (D) or *D*, the year date protection commenced and the owners name or abbreviation of the name. After registration, the registration number may be used instead of the foregoing. Absence of Notice can prevent recovery from infringement.
The owner of a registered design has the exclusive right to make, have made, sell, distribute, use or import vessels having the registered design. Infringement can be redressed by a Federal Court action or by an action against importation in an ITC proceeding. Remedies for infringement include injunction, damages and seizure, and destruction of the infringing items.
Vessel hulls and decks can also be the subject of design patents, but if a design patent is obtained for the same design, the design registration will terminate.
This design registration protects a vessel hull, deck or combination of hull and deck, which is an original design that is attractive or distinctive in appearance. The law also covers plugs and molds for making hulls and decks. Protection is for a ten year term commencing on the date when the vessel is publicly exhibited, distributed, offered for sale or sold, and an application for design registration must be made within two years from the date when the vessel was first publicly exhibited, offered for sale or sold.
Notice for a protected design is similar to a copyright notice and comprises any of the following notations “Protected Design”, “Prot’d Des”, (D) or *D*, the year date protection commenced and the owners name or abbreviation of the name. After registration, the registration number may be used instead of the foregoing. Absence of Notice can prevent recovery from infringement.
The owner of a registered design has the exclusive right to make, have made, sell, distribute, use or import vessels having the registered design. Infringement can be redressed by a Federal Court action or by an action against importation in an ITC proceeding. Remedies for infringement include injunction, damages and seizure, and destruction of the infringing items.
Vessel hulls and decks can also be the subject of design patents, but if a design patent is obtained for the same design, the design registration will terminate.
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