Design Patents v Trademarks
The first email I opened this morning was a notice from the United States Patent and Trademark Office informing me that my client’s design patent had been issued. The next email was an inquiry for a trademark consultation. That led me to think about how often design patents are overlooked when developing intellectual property portfolios. This serves as a reminder…
Design Patents
Purpose:
Protects the ornamental design of a functional item.
Coverage:
Covers the visual characteristics of an object, such as its shape, configuration, or surface ornamentation.
Duration:
Typically lasts for 15 years from the date of grant in the United States.
Requirements:
The design must be new, original, and non-obvious. It must be non-functional and solely for aesthetic purposes.
Application Process:
Involves submitting detailed drawings or photographs of the design to the patent office. The application is examined for originality and adherence to patentability criteria.
Rights Granted:
Gives the patent holder exclusive rights to use and protect the design. Others cannot make, use, sell, or distribute products with the patented design without permission.
Examples:
The unique shape of a smartphone, the design of a piece of furniture, or the pattern on a fabric.
Trademarks
Purpose:
Protects brand identifiers such as names, logos, slogans, and other symbols that distinguish goods or services.
Coverage:
Covers words, phrases, symbols, logos, and sometimes even sounds and colors that identify and distinguish the source of goods or services.
Duration:
Potentially lasts indefinitely, as long as the mark is in use and proper renewals are filed.
Requirements:
The mark must be distinctive and used in commerce. It cannot be generic or merely descriptive without acquiring distinctiveness.
Application Process:
Involves submitting a representation of the mark and specifying the goods or services it will be used with. The application is examined for distinctiveness and potential conflicts with existing trademarks.
Rights Granted:
Gives the trademark owner exclusive rights to use the mark in connection with the specified goods or services. Others cannot use a confusingly similar mark without permission.
Examples:
The Nike swoosh, the Apple logo, or the phrase "Just Do It."
Comparison and Contrast
Similarities:
Both offer exclusive rights to the holder.
Both require a formal application and examination process.
Both can be crucial for protecting intellectual property and maintaining a competitive edge.
Differences:
Nature of Protection:
Design Patents: Protect the visual design of an object.
Trademarks: Protect brand identifiers that signify the source of goods or services.
Scope:
Design Patents: Cover only the appearance of an item.
Trademarks: Cover names, logos, slogans, and other brand elements.
Duration:
Design Patents: Last for 15 years from the date of issuance.
Trademarks: Can last indefinitely, subject to continued use and renewal.
Requirements:
Design Patents: Must be new, original, and non-functional.
Trademarks: Must be distinctive and used in commerce.
Application Process:
Design Patents: Focuses on detailed visual representations.
Trademarks: Involves demonstrating the mark's use in commerce and distinctiveness.
Rights Granted:
Design Patents: Prevent others from making, using, or selling the patented design.
Trademarks: Prevent others from using a confusingly similar mark in commerce.
Understanding the differences between design patents and trademarks helps businesses and individuals choose the appropriate type of protection for their intellectual property and ensure their unique designs and brand elements are adequately safeguarded.