Design Rights 101

Design rights protect the ornamental aspects of articles—their design, which may consist of three-dimensional features, such as the shape of an article, or of two-dimensional features, such as patterns, lines or colors.  In most areas of the world, such as in Japan and in the European Union, designs are the subject of their own unique protection focused on their aesthetic nature. In the United States, designs can be protected through design patents, trade dress, and/or copyrights.

Businesses often rely on design patents for protecting the designs of their products in the United States.  Design patent protection is for a term of 14 years from the issue date, and benefits from a strong presumption of validity during that term. On average, a design patent costs less than a utility patent and takes substantially less time to obtain from the United States Patent and Trademark Office (USPTO). Thus, design patents can provide companies with a relatively quick and effective method of preventing competitors from infiltrating a market by mimicking the design of a successful product, prevent price erosion and protect their share in the U.S. market.

Additionally, in the event of infringement, the design patent owner has a choice of recovering total profits from the sales of the infringing article.  Preliminary and permanent injunctions are also available to design patent owners in federal court, as well as exclusion orders from the International Trade Commission.

In recent years, there has been an increase in the number of design patent applications filed on designs for industrial products as companies all over the world come to recognize that product sales are not only driven by what products do, but also by how products look. Companies also are increasingly seeking design patents in various fields of technology in order to secure an important source of revenue: replacement parts. Even parts and products hidden in use can qualify for design patent protection under certain conditions. In recent years, companies have obtained design patents for auto parts, engine parts, disc drives, semiconductor devices and various parts for consumer electronics. Design patents have also been obtained for spouts and containers, steam irons, and airplanes and various components thereof.  Applying a combination of protections, companies can safeguard their products effectively.

As with utility patents, however, a design patent is only as valuable as the subject matter that it claims. The law of design patents includes a number of subtle nuances that the applicant must be aware of in order to take full advantage of design patent protection. Therefore, it is essential to have skilled counsel prepare the design patent application using a carefully constructed strategy.