Deciding Between Design Patent and Trade Dress

Design patents have a 14 year lifespan under patent law. Trade dress is a form of trademark protection and can last as long as the owner continues to use the trade dress. Thus, trade dress protection can extend for decades, and in fact, becomes stronger over time. Many trend setting companies launching new products will want long term protection of their iconic design, so they are willing to forego the initial value of a design patent in the early years in favor of a long term protection strategy under trade dress law.

Trademarks can also be easier and less costly to enforce than design patents. The evidence allowed to prove a case of infringement under trademark law is broader and more favorable for the company alleging the infringement than in patent law cases.

Trade dress offers another interesting option for enforcement efforts. Trademark law is a type of unfair business practice. Criminal charges may result in some cases, another tactical advantage when trying to “encourage” settlement and cease the copying.

In the case of international trade, there may also be some advantage to trademark over patent protection because international treaties protect some business aspects that fall within the realm of trademark law. On the other hand, patents have no protection except by patent grant in each country. (In some countries, however, they are treated relatively the same as “industrial design”).

If you are deciding between these forms of protection, discussion with an intellectual property attorney can help you create a strategy best suited for your situation.