The United States Patent and Trademark Office (or USPTO) just commemorated the issuance of its 700,000th design patent. That’s a type of patent that protects the ornamental design of a product – its unique look/design, as opposed to its function (which can be protected by a utility patent).
Design patents are a growing area. The number of applications is growing rapidly, and we see lots of interesting enforcement in this area of intellectual property (“IP”) protection. (Apple vs. Samsung comes to mind.) But we also see lots of grief over the cost of obtaining patents, and over how difficult that application process can be. Those who have a product design to protect, take heart: you have other options for protecting your IP besides just a design patent. And the alternatives can sometimes mean better protection or a better option for your company, too. Here are two other options, besides a design patent, to consider.
One option can be trade dress protection. A non-functional design that helps consumers identify the goods with a particular source (your company!) may qualify as a protectable “trade dress,” so long as it’s not part of the functional design and other requirements are met. Of course, trade dress can be difficult to establish—but if successful, it offers the longest-lasting protection. A design patent lasts no more than 14 years, while trade dress protection can continue indefinitely.
Copyright protection can protect a creative design from being copied by others, too. Unlike trade dress protection, it does not require a showing of “acquired distinctiveness” or of a likelihood of consumer confusion. But it too cannot extend protection to “useful articles” or design elements that are functional.
Each IP protection (design patent vs. trade dress vs. copyright protection) has its own strengths and weaknesses. A smart entrepreneur gets counsel early in their product’s lifecycle, about which approach to use for their particular product and goals—and to help ensure their IP portfolio remains or becomes a valuable company asset.
In case you were wondering, the 700,000th design patent was issued for the ornamental design of the LeapsterGS™ by LeapFrog Enterprises. And the USPTO’s milestone ceremony included the launch of a new “Intellectual Property Patch,” a joint project between the USPTO and the Girl Scout Council of the Nation’s Capital. Go Girl Scouts! (Don’t worry, the Boy Scouts cover some IP basics in their Game Design merit badge, too.)