Trademark a Design

Trademark a Design

by Jane Haskins, Esq., January 2015

Trademarks, Copyrights and Design Patents – What Is the Difference?

There are several ways to protect your intellectual property rights to a design. Your design may be eligible for trademark protection, copyright protection or patent protection, depending on the type of design and the way it is used.

  • A trademark protects your right to use a design that identifies your business’s goods or services. You might trademark a design for a logo, a label or product packaging. You gain trademark protection by using the design in business.
  • A copyright protects original works of authorship. You automatically have a copyright in any design you create and fix in a tangible medium such as paper, cloth or a digital medium. You might have a copyright in a clothing design, a logo, a website design or a blueprint. You do not need to use a design in business to have copyright protection, but you must have created it or had the copyright transferred to you in writing.
  • A design patent protects the ornamental design elements of a functional object, such as a smartphone or a lamp. The only way to obtain a design patent is to apply for a patent from the U.S. Patent and Trademark Office (USPTO).

Your design might be eligible for more than one kind of protection. For example, over the years, the Coca-Cola Company has obtained both design patents and trademarks for its bottle design. Your company logo might be eligible for both copyright and trademark protection.

Types of Designs That Can Be Trademarked

Many types of designs can be trademarked, including:

  • Logos
  • Product designs
  • A design for your product’s label or packaging, if it helps to identify the source of the product in the package (like the contour Coke bottle)
  • Color schemes, if they identify your product and distinguish it from competitors

However, in order to be eligible for trademark protection, a design must meet USPTO standards for uniqueness. You cannot trademark a design that is too generic. In addition, your design cannot be confusingly similar to another design that is already trademarked or for which there is a pending trademark application.

Registering a Design

You can register a design with the USPTO by using the online Trademark Electronic Application System (TEAS) or use an online trademark service. The process for registering a design trademark is the same as for any other type of trademark, but there are some issues to be aware of:

  • Your trademark application must include an image of your design. You will also need to decide whether you want to trademark a black and white or color version of your design. If you choose black and white, your design will be protected in whatever colors you choose to display it, giving you flexibility to change colors and still retain your trademark protection. However, if your design relies on a particular color scheme, you will need to register it in color.
  • If your design is in color, your application must identify the colors used in the design and indicate where they are used.
  • The filing fee for a trademark application is $275–$325 depending on the type of trademark you’re seeking. These fees can change, so check with the USPTO for the most recent fees.
  • You can expect the registration process to take at least several months.

If you have a design you want to protect, LegalZoom can help. Our Design Patent service includes review, advice and suggestions by a USPTO registered patent attorney or agent, professional drawings, techinical illustrations and electronic filing of your application. For an additional fee, you can get a comprehensive patent search.