Designing Successful Intellectual Property Protection

By Brionna Ned

When you start to think about protecting your business’s intellectual property, some things might immediately jump to mind – like trademarking your logo or filing a patent application for the functional invention that underlies your business. But other things, like the design or appearance of your product, may not be so obvious. In fact, it may not have occurred to you that you can and should consider seeking protection for the appearance or ornamental characteristics of your company’s product – whether that product is an actual article of manufacture, like the Apple iPhone, or the user interface of your mobile application. Intellectual property law offers protection for both via copyright and patent law.

It should be noted that protection for the design or an otherwise functional item is limited, but there is some protection nonetheless. Under patent law, you would apply for a design patent, which protects the visual ornamental characteristics or the appearance of a product. Under copyright law, you can apply for a copyright for the design, so long as it constitutes original creative expression. But under both patent and copyright law, the protection would only extend to the actual design and not the underlying functionality of the product. Such protection may seem inconsequential at first glance, but there may be strategic reasons for seeking it. For example, in some circumstances it might be beneficial to have layered protection for your intellectual property – meaning protection for the underlying functionality of your product, such as a utility patent, as well as protection for the design aspects of your product. Alternatively, perhaps the underlying functionality of your product is not sufficiently unique to warrant a utility patent, so you would instead consider seeking protection for the design features of your product through multiple design patents or through copyright. Protecting the design or appearance of your company’s product, such as a graphic user interface, may also help increase potential licensing value.

If you think your company’s product might benefit from design protection, talk to lawyer so he or she can advise you on the best course of action.

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