When thinking about design protection, one must first distinguish between functionality and appearance. Functionality is protected under utility patent law, but appearance is protected under a penumbra of other regimes. Design elements can possess both functional and cosmetic features worthy of protection, but the choices made purely on appearance are considered designs in the realm of intellectual property.
One may protect a design with a copyright, design patent, trademark or any combination thereof.
I think of the mass production of artwork when it comes to protecting designs through copyright. Examples include two-dimensional images, paintings, drawings, photographs, prints, digital images, as well as three-dimensional sculptures, jewelry and industrial designs. Copyrights are relatively inexpensive, and last the longest, but protection only extends to direct copies of the design. Slight modifications or designs based on the same idea might circumvent infringement.
Design patents are stronger than copyrights, but last a shorter period and cost significantly more. The standard of infringement is whether a consumer with knowledge of the original design would mistake an infringing design for the original. This is the best tool for consumer goods, and should be an industrial designer’s first line of defense.
Trademarks also may protect a design, but in a significantly different way. Designs usually fall into
trademark territory in the form of a logo, but can extend to shapes (Coca-cola bottle), colors (brown for UPS) or anything that helps consumers identify the quality and origin of a product. This
provides a wide breadth of protection over anything that would confuse a consumer into thinking a product comes from a different source. Typically, trademarks are useful when trying to develop a
brand that sells a variety of products.
The more lines of protection you obtain, the more control you’ll have over the use of your design. But acquiring all of the above may not be practical or affordable. Part of my job is finding the greatest value of protection, and I can help you determine the priority of each applicable tool.