Design patents have similar procedures to the procedures for obtaining utility patents – but with a few differences. For instance, a design patent has a term of 15 years from grant. As opposed to a utility patent, no fees are necessary to maintain a design patent throughout its life.
Drawings are used to claim the design – not words. Because the drawings are the “claims,” the drawings must be exact and are usually examined more precisely than drawings submitted with utility patent applications. We work with professional patent draftsmen who can produce the type of drawings that the patent office expects.
We often refer to design patents as a “poor man’s patent” because they are relatively inexpensive. However, they can offer powerful protection. For instance, most of the damages Apple won against Samsung in the smart phone wars were due to Apple’s design patent on the overall shape of the iPhone.
In most countries, an industrial design needs to be registered in order to be protected under an industrial design law as a “registered design”. Depending on the particular national law and the kind of design, industrial designs may also be protected as works of art under copyright law or trademark laws.
Not only do we obtain design patents for our clients (and often trademark, tradedress, and copyright protection), we also work with foreign attorneys to ensure that our clients’ designs are protected in other countries and regions as industrial designs.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark (or brand). Trademarks are actually governed by both state and national laws. However, in the age of the Internet and due a few court cases, state registrations are less important. State common laws, on the other hand, may be very important as are federal trademark registrations.
At the national, regional or state (in the U.S.) level, trademark protection can be obtained through registration, by filing an application for registration with the national/regional trademark office and paying the required fees. At the international level, we assist clients by arranging to have trademarks filed in individual countries by local attorneys or we can use the World Intellectual Property Organization Madrid System Protocol to provide “international” protection of your marks.
In principle, a trademark registration will confer an exclusive right to the use of the registered trademark. This implies that the trademark can be exclusively used by its owner, or licensed to another party for use in return for payment. We assist our intellectual property clients with acquiring trademark registrations at the state, national, and even international levels.
The requirements for registering trade dress vary widely from country to country. Generally speaking, an application for trade dress must meet the standard requirements for any trademark application. However, as opposed to trademarks, the trade dress for a product must either be inherently distinctive or have acquired distinctiveness. Typically, trade dress cannot be functional.
In many countries, trade dress is referred to “product design.” Traditionally, trade dress was viewed as more applicable to products, and product packaging. Generally, the more the trade dress is readily recognized as being distinctive, the more it is likely to be entitled to protection.
In the United States, for example, trade dress protection applies to the “total visual image” where services are concerned. In one case, courts have held that a restaurant’s décor, menu, layout and style of service were protectable under trade dress. In other countries, it may be more difficult to establish trade dress rights, as the threshold for distinctiveness often is extremely high.
In the United States, trade dress may be protected via common-law rights (acquired through use in commerce) and/or by registration similar to trademarks. In most other countries, some types of trade dress can be protected through registration and through unfair competition laws. A U.S. trade dress application must include all of the same content as any other trademark application, including a description of the trade dress, identification of the product or service to be covered and payment of the appropriate fee. However, the trade dress must be both distinctive (i.e., recognizable to consumers as identifying the source of the product or service) and nonfunctional (i.e., not be essential to the use or purpose of, and not affect the cost or quality of, the product or service). In the U.S., functional trade dress is not registerable even if it is distinctive.
As part of our intellectual property services, we can assist you with trade dress registration and other protections for your products, packaging, and services.
Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of a copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. Many businesses use copyrights to protect instruction books and software. Of course, the entertainment industry heavily relies on copyright protection to protect artistic and musical works.
It is no longer necessary to register copyrights in order to receive protection. However, registration provides enhanced “statutory” damages and is almost always recommended. Copyright registration is relatively inexpensive and easy. We can file copyright registrations for you. However, we often provide training to our clients on copyright registration procedures as part of our intellectual property consulting services.
