Even in the earliest stages of product development, understanding the differences between design patents and trade dress rights can be beneficial to engineers and product designers. The timing of product development and the expected lifecycle of the product can impact what types of protections may be best and understanding these differences can help create products that compete for a longer period in the marketplace. Design patents provide a limited term of protection for the visual, non-functional characteristics of an article. They can cover aspects such as the shape, colour and pattern of an entire product or a portion of a product. That similarity of only a portion of the overall product was sufficient to infringe. Trade dress is a type of trademark directed to the distinctive look and feel of a product or service which may identify the source of the product. Trade dress coverage may include the design of a product, or the packaging of a product. If a product design is identifiable with a brand, company, or source, trade dress rights prevent other products from appearing confusingly like a consumer. Although the article can provide functionality, the portion of the design to be protected cannot be purely functional. If the design is the only way to maintain the functionality of the article, the design is not eligible for design patent protection. To obtain trade dress rights, the design must be non-functional, and must have acquired “secondary meaning,” such that the design is identifiable with the source. If the design involves product packaging, trade dress rights may arise from “inherent distinctiveness. Remember, trade dress protection can only be obtained for non-functional designs. The shape of a Gibson guitar was deemed too functional because it was advertised to have acoustical advantages. If you choose to pursue trade dress rights, make sure you avoid touting functional benefits of the design. Demonstrating that a design has acquired secondary meaning can be difficult, and it requires evidence which may include customer testimony or surveys. In some cases, adequate recognition may require extensive marketing and sales of the product. Aggressively highlighting the design feature when advertising may help emphasize its secondary meaning. Once a design acquires secondary meaning, future products can also benefit if they use the same protected design feature. Furthermore, with trade dress rights, a competing product infringes when it is deemed close enough to confuse a consumer regarding its source.
Design patents and trade dress rights should be considered when the visual appearance of your product may contribute to its commercial success in the marketplace. Investment in one or both types of protection can create significant economic benefits for the owner of the rights.
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