Another Aspect of Design: Trade Dress

Another Aspect of Design: Trade Dress | Joshua Graubart

{4:30 minutes to read} In my last post, I discussed the design patent, a form of protection available under the Patent Act to protect designs that are “primarily ornamental” rather than those which – like most inventions one normally thinks of in connection with the Patent Act – are “primarily functional.” Design patent protection can coexist simultaneously with copyright protection for the design as a graphic or sculptural work. In addition to patent and copyright law, non-functional designs can also be protected under the federal Trademark Act (also known as the Lanham Act), and under state trademark and unfair competition law. As discussed previously on this blog (see “What is Intellectual Property?”), trademark law serves to protect non-functional features of a product which identify to consumers the product’s source, and distinguish the product from similar products supplied by competitors. Marks are frequently words (e.g., “Nike”) or logos (e.g., the Nike “swoosh”); in certain circumstances, even colors and scents have been registered as marks by the U.S. Patent & Trademark Office.[1] (More on these sorts of outré marks in a future post.)

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