Enough is Enough: Time to Eliminate Design Patents and Rely on More Appropriate Copyright and Trademark Protection for Product Designs

Abstract

Product designs can be protected under all three of the patent, trademark, and copyright laws. This is because product designs comprise original ornamentation, can serve as indicators of source in the marketplace, and constitute works of art in their own right. This paper juxtaposes the three options for protecting product designs and shows that the requirements for protection and scope of protection under each statutory framework are in many respects strikingly similar, though each has some important unique limitations. Looking back to the historical origin of design patents, it appears that the core purposes of the design patent system – encouraging design and preventing unfair competition – are better served by protecting product designs as trade dress and/or a copyrighted useful article, rather than via a design patent. When first created in 1842, design patents were apparently the best option available, but in the more than 150 years since then trademark and copyright laws have evolved to the point where they have effectively removed the need for design patents. The patent system has always been a misfit for the artistic subject matter of product design, and now is the time for design patents to finally be phased out of existence.

Keywords: design, design patents, trade dress, product design, copyright, useful article, ornamental, functional

JEL Classification: K39, K40