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4. Comparing Design Patents to Copyrights and Trademarks

Most people understand that it's important to take steps to protect their creative design. The confusing part can be figuring out what type(s) of intellectual property protection are needed. Each type of protection covers certain subject matter and 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 creations are eligible for each.
In general:
  • A design patent protects any new, original and ornamental design for a useful 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 commerce to identify and distinguish a particular source of goods or services from another source.
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If you still can't decide what type of protection is right for your creation, it may be helpful to ask the following:
  • 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 it is, 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 photo. 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 federal trademark protection for the use of that mark.

While patents, copyrights and trademarks all have force nationwide, they differ in application process, length of protection and cost. In addition, patents are granted and trademarks are registered by the USPTO, while coyrights are registered by the U.S. Copyright Office. All three forms 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 to protection.

 
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