Protection of Industrial Designs in the United States

Jul 2005European Intellectual Property Review, Vol. 27, No. 7 at 256

An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or colors. Industrial designs are applied to a wide variety of products of industry and handicraft. To be protected under most national laws, an industrial design must be visually appealing. In other words, an industrial design is primarily of an aesthetic nature, and does not protect any utilitarian features of the article to which it is applied. In the United States, with a very narrow exception, industrial designs are not protected by one body of intellectual property law. This is not so in other areas of the world, such as in Japan and in the European Union, where industrial designs are the subject of their own sui generis protection. Rather, owners of industrial designs wishing to protect them under United States law must resort to a combination of different types of protection: design patents, trade dress, and copyrights. This article shall explore the strategic considerations for protecting industrial designs under these three facets of United States intellectual property law.