"Now and Later": Using Design Patents and Trade Dress to Maximize Protection for Product Designs

The useful part

Key Takeaways Two forms of intellectual property protection — design patents and trade dress— can offer distinct forms of protection for consumer products at different points in the product's lifecycle. Public disclosure before filing can jeopardize design patent rights, especially in foreign jurisdictions, and trade dress rights generally require marketplace recognition that develops over time. Coordinating design patent filings, evidence of acquired distinctiveness and later trade dress reviews can help extend protection for valuable product designs.

How it works

• Unlike a utility patent, which protects how an invention works, a design patent protects how a product looks.
• Businesses that invest in product design should consider intellectual property protection early in the development process and continue evaluating protection as their products gain recognition in the...
• Two forms of intellectual property protection are particularly relevant for consumer products and everyday items: design patents and trade dress.
• Although both can protect a product's appearance, they serve different purposes and are most effective at different stages of the product lifecycle.
• File Design Patent Applications Early A design patent protects the ornamental appearance of a product, including its shape, surface ornamentation or a combination of both.

What to take from it

Businesses should generally file a design patent application before publicly disclos...

Details worth keeping

Timing can determine whether protection is available. Businesses should plan early and revisit protection over time. An effective strategy is often a "now and later" approach: pursue a design patent now, before introducing the product to the market, and consider trade dress protection later — after consumers have come to recognize the product's appearance as identifying your brand.