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Combine and Conquer: How the Synthesis of Design Patent and Trade Dress Achieve Maximum Protection for Your Product Design |
July 20, 2009
Previously published on May 2009
Have you ever been frustrated with free-riders? Let's look at a simple example. You are a General Counsel at a luxury fashion house. Your fashion house is introducing a new handbag that is expected to create more hype than the Hermes BIRKIN. The newly-launched handbag in a matter of several months becomes a huge hit among fashionistas. And copycats across the globe start making their own versions of the handbag. What can you do about this? Copyright, which grants protection to the author from the moment of creation, will most likely not cover the shape of the handbag because the shape, no matter how original and creative, is not conceptually separable from the underlying utilitarian aspects of the handbag design. A suit for trade dress infringement is probably not an option either, since you'll be required to demonstrate that the consuming public has come to exclusively associate the shape of the handbag with your company. And how can consumers develop such an association when the copycats start flooding the market with their own look-alike versions the moment your original walks the runway? So do you tell the CEO of your fashion house that the battle is lost? Not so fast. Securing a design patent is a way to prevent copycats from appropriating your design the moment your purses hit the press. And more importantly, a design patent gives you the most valuable gift of all - time to develop secondary meaning that allows you to secure perpetual trade dress protection.
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The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance. |
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