With the holidays fast approaching, you may have purchased a Christmas or other holiday ornament because of its unique, beautiful, or just very cool features. This uniqueness can be intellectual property worth protection. Whether it is a tree ornament or a singing Santa Clause statue, this article will help explain how businesses protect the unique features to create a competitive advantage in the marketplace. This article also explains how businesses and inventors may protect certain distinctive features such as Christmas Tree ornaments.
1. Design Patent
A design patent is fairly similar to a trade dress in that it protects the ornamental and nonfunctional features of a product. United States Design Patent Serial No. D674,725 is a quirky – and quite frankly a bit scary – Christmas tree ornament that is protected through design patent protection. One of the figures of the United States Design Patent Serial No. D674,725 is illustrated directly below. To learn more about design patent protection, click HERE and see how you can help protect products using design patents.
2. Trade Dress
An ornament’s design may be protected through “trade dress” law. Similar to a trademark, a product’s design or packaging may be entitled to trade tress protection. Trade dress for a product’s design may be described as the “total image and overall appearance” of a product design. This may include features such as shape, color, texture, and/or graphics. To obtain trade dress protection for an ornament’s design, the design must have acquired distinctiveness through “secondary meaning”. Secondary meaning is a term that refers to the connection in the consumer’s mind between the mark and the product’s producer, whether that producer is known or unknown.
Secondary meaning for a product design may be proven through long term use, advertising expenditures, commercial impressions created by advertising, survey evidence, market research, and consumer reaction studies. Many intellectual property owners will use trade dress protection to protect the ornamental design after a design patent is expired. An example of a Christmas tree ornament that is protected through trade dress is the R2D2 Christmas tree ornament. The Christmas Tree ornament illustrated directly below is registered as United States Trademark Registration No. 3,739,729. To learn more about trade dress protection, click HERE and see how you can help protect a product’s design with trade dress.
While trade dress protection exists for as long as the product is in commerce, design patent protection only lasts for 15 years. It is often the case that a business will opt to obtain a design patent first, then, upon expiration of that patent, apply for trade dress protection. This is ideal because the design patent gives the business 15 years of protection while they attempt to establish secondary meaning for their product’s design, which can then be used as evidence for acquired distinctiveness when applying for trade dress protection.
You may seek immediate trade dress protection if you have a product already in commerce, such as a Christmas tree ornament, which employs a unique design and is distinctive enough that consumers associate the particular design with your product. Conversely, you may have a Christmas Tree design thought up in your head that is unique from what is currently available on the market. In this case, you may want to opt for a design patent to get immediate protection when you are ready to put your design on the market, then, possibly obtain trade dress protection later on.
3. Utility Patent
A utility patent may also protect certain functional features of an ornament. A utility patent protects the new and/or improved “useful” features of an invention. To obtain utility patent protection, an applicant must disclose an invention that is useful, new, and non-obvious. For example, directly below are images from United States Patent Serial No 7,757,435. The inventor protected the functional features of his Christmas tree ornament that waters a Christmas tree. How cool is that?! To learn more about utility patents, click HERE.
Trademark law may be used to protect the brand associated with a Christmas ornament. A trademark or service mark includes any word, name, symbol, device, or any combination thereof, used to identify and distinguish the goods and services of one seller from another. Directly below is an example of a registered trademark (United States Trademark Registration No. 6,533,828) used to protect a brand of ornaments. If you have a line of holiday products that you sell under the same trade name, a registered trademark could be a valuable asset for protecting your brand, especially if you sell your goods online. Trademark protection allows you to stop other businesses from selling products under the same or a confusingly similar name to your brand. Trademark protection is essential for protecting your business’s sales as well as your reputation. Click HERE to learn more about trademarks and how they can help protect your business, as well as its products and services.
Copyright protection may be used to protect artwork or items such as unique Christmas ornaments. A copyright is a set of rights granted to the author of an original work of art. In the United States, original works of art fixed in a tangible form of expression are entitled to copyright protection. If you are writing a new children’s Christmas book or are making Santa Clause sculptures, you may want to consider obtaining copyright protection. Registering your work with the Copyright Office provides several advantages. In fact, if someone started selling your work without your permission, you could not bring a lawsuit for copyright infringement until you have registered your work with the Copyright Office. So, it is important to register your work as soon as possible. Click HERE and scroll to the bottom of the page to learn more about copyrights.
The intellectual property and patent attorneys at The Plus IP Firm help businesses and inventors create a competitive advantage by obtaining patents, and registering other intellectual property, such as trademarks and copyrights. Determining the type of protection you need may seem daunting, and the steps which follow even more so. The attorneys at The Plus IP Firm specialize in intellectual property and can help you every step of the way to obtain the type of protection that is right for your business, products, and services. This article was authored by Dillon Kashat and Derek Fahey. To learn more about Derek Fahey, please click HERE.