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Design Patents
Most people understand it’s important to take steps to protect their creative design. The confusing part can be figuring out what type(s) of intellectual property (IP) protection are needed. Each type of protection offers specific rights to its owner. Thus, it’s important to be clear from the start as to what protection patents, copyrights and trademarks actually give you, and what sorts of designs are actually eligible for them.
In general:
- A design patent protects any new, original and ornamental design for an article of manufacture.
- A copyright protects any original work of authorship that has been fixed in a tangible medium of expression.
- A trademark protects any words, names, symbols or devices used in trade to identify and distinguish a particular source of goods or services from another source.
If these definitions don’t sound different enough to decide what type of IP protection is right for your creation, it may be helpful to ask if your original design meets the criteria for each type:
- Is your design industrial (meaning it’s on a manufactured article or object) and if so, is it purely aesthetic (doesn’t alter the way the object works if the design is removed)? Then, you can apply for a design patent. Note: if the new design actually improves the function of the object, then you may want to consider utility patent protection.
- Is your work a painting, drawing, photograph, sculpture or architectural design? Then you may be able to register a copyright. Other eligible works for copyright include literature, dramatic or audiovisual works, musical compositions or recordings and choreography.
- Is your design a logo or other representation of words or symbols that you use or will use to identify your brand or company in commerce (think of the stylized ‘M’ symbol of McDonald’s, the cursive font of Kellogg’s or the picture of the Michelin Man)? Then you can apply for a federal trademark.
For example, if you’ve created a new soda bottle that has an original shape, then you are likely looking for design patent protection. If the new shape has the effect of changing the way in which the bottle would be used, you may want to consider a utility patent. If, instead, you’ve captured a uniquely distorted view of a glass bottle through your camera lens, you may have a copyright that you can register on the print. And finally, if you’re using a logo that depicts the signature curves of your bottle design on all of your company packaging, you may want to look into trademark protection for the use of that mark.
While patents, copyrights and trademarks all have force nationwide, they differ in application process and length of protection. In addition, they are granted by different governmental bodies (U.S. Patent and Trademark Office or U.S. Copyright Office) and involve different rules on public notification and enforcement. Also, only trademarks can be renewed.
The majority of designs fall squarely under one category of intellectual property – design patent, copyright or trademark. However, some designs may meet eligibility for more than one type. Keep in mind that each type involves a separate application process and requirements, so take care in choosing your path.
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