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Legal protection options for non-functional product designs

All businesses strive to market their products in ways that connect well with potential customers and establish their brands. Fortunately for these businesses, it is possible to protect their efforts from copy cats. Three types of protections exist for product designs that are non-functional, yet essential to marketing and brand development: copyright, design patent and trade dress.

Copyright protections for non-functional product designs

Seeking copyright protection is a powerful way to protect non-functional product designs. Copyright protection gives the owner of the copyright the exclusive right to reproduce, distribute and display his or her work publicly. If the copyright is registered in the United States, owners can pursue litigation for infringement if another party copies their registered design.

Copyright protections are only applicable to non-functional design elements. For example, copyright protection could not cover the outline or shape of a dress, since this is a functional design element, but it could cover the design found on the fabric, which is non-functional.

Protections under copyright law last a long time. They can start from the creation of the product and last as long as the life of the author plus another 70 years, or 120 years if the work was made for hire. Registration is relatively inexpensive and easy to obtain.

Unlike other design protections, copyright laws do not require copyright holders to prove that not protecting the non-functional design will lead to confusion in the marketplace.

Design patent protection of non-functional product designs

Another way to protect the non-functional design of a product is with a design patent. Like copyrights, design patents can only cover non-functional aspects of a product’s design, not useful or functional ones. For example, design patents could cover the product design of digital icons, garments, pots and pans or electronics. Design patents last a relatively shorter period of time than copyrights, only14 years, but are essential for businesses that want to protect the design of products in development.

A design patent is meant to protect patent holders from copy cats in the marketplace. A design patent protects holders from competitors copying the protected design so closely that an ordinary consumer is not able to readily tell the difference between the two product s and may inadvertently purchase the competitor’s product while meaning to purchase the patent holder’s product.

Trade dress protections of non-functional product designs

Though trade dress protections can be difficult to obtain, once acquired, they offer businesses the most protection for non-functional product designs. A trade dress is the design or shape of a product or its packaging. The Lanham Act protects trade dress if it serves the same purpose as a trademark does in identifying a brand in the marketplace. Like design patents, trade dress protections are used to prevent confusion in the marketplace from copied product and packaging designs.

For example, the iconic shape of a Volkswagen Beetle is a non-functional design that creates an association between the consumer and the Volkswagen brand, much like the bright red trademarked target logo does for big-box store Target. Since the Beetle’s shape serves a similar function as Target’s trademarked logo, it is protectable under trade dress laws.

Courts consider a few different factors when establishing trade dress protections for a non-functional design. First, the court will consider how long the design has been used and take into account how strong an association the consumer makes between the design and the company. The court will also consider the efforts the company has made to establish a connection between the design of its product or the product’s packaging and the company itself.

If your company has created a product with a unique, non-functional design that you would like to protect with a copyright, design patent or trade dress protection, please contact an experienced intellectual property attorney who can help determine what protections are appropriate for your situation.

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