Both design patents and trade dress have one unfortunate thing in common: functionality of the design can be a killer.
You cannot protect a design feature if it is essential to the product's use or purpose.
The Test: If a unique shape makes the product work better, cheaper, or easier, it's functional and cannot be protected by Trade Dress and will be much harder to protect with a Design Patent.
For example, if the scent of Play-Doh were a byproduct of how it’s made or its essential ingredients, it couldn’t be protected as a trade dress trademark.
If a uniquely thick and textured spoon handle makes it easier for witches with arthritis to grip and stir what’s in their cauldrons, that is functional and belongs in a utility patent. It’s the essential part of the function of the ergonomic handle, so both design patent and trade dress protection for the appearance of the handle are prohibited. However, if the texture just needs to exist and can be in any format, the texture being in a pattern of, say, repeating bats, that pattern on the handle could be protected by a design patent or as trade dress.
The Lesson: If your design is purely aesthetic, a style choice, it's protectable. If it's utilitarian, a necessity, or unavoidable, like a particular color or scent caused by manufacture, it is not. If this episode helped you survive the horror of learning about how to protect and manage your intellectual property and business, please like and subscribe!
Intellectual property is one of the most terrifyingly useful tools you have. If you're a creator or other entrepreneur ready to build a frighteningly powerful brand, you need to know how to use it.
You don't have to face the darkness alone. To learn more about protecting your creations, your name, your business, and your legacy, you can book a consultation with me at kingpatentlaw.com. I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I'm an attorney in Champaign-Urbana, Illinois, and I serve intellectual property clients nationwide.
You can find all of my other frighteningly good content on the King Patent Law website, at "Know Your Rights: Your IP and Business Law Playbook" on all major podcast platforms, and at @kingpatentlaw on most social media.
The information provided in this episode is for educational purposes only and does not constitute legal advice or form an attorney-client relationship. You should not act on any information presented here without first seeking the counsel of a licensed attorney for your specific legal needs.
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