Deep dive · 2 min

Trade dress vs. design patents

Two ways to protect how a product looks, and how to choose between them or use both.

General information about U.S. trademark law, not legal advice about your situation. LaunchTime IP is software, not a law firm.

When the valuable thing about a product is how it looks (its shape, packaging or overall appearance), two different tools can protect it. They overlap and are often confused, and the right choice depends on why the look matters.

Design patent: protects the ornamental design

A design patent, granted by the USPTO, protects the new, original, ornamental appearance of a product, such as the curve of a bottle, the face of a watch or the shape of a chair. It lasts 15 years and requires examination. You must file within one year of first publicly disclosing or selling the design, or the right is lost permanently. It protects the look whether or not customers associate it with your brand.

Trade dress: protects a look that identifies the source

Trade dress is a form of trademark. It protects the overall look of a product or its packaging when that look tells buyers who makes it, such as the classic Coca-Cola bottle shape or a distinctive restaurant interior. Like other trademarks it can last indefinitely and has no filing deadline. You do have to show that the look is non-functional and that it is either inherently distinctive or has acquired secondary meaning, which means buyers recognize it as a brand. That proof is usually the hard part.

Side by side

Design patentTrade dress
Type of IPPatentTrademark
ProtectsOrnamental appearanceAppearance that signals source
Lasts15 yearsIndefinitely, if maintained
Key hurdleFile within 1 year of disclosureProve it is non-functional and distinctive

Using both

Many product companies use both. A design patent gives strong protection in the early years while the design is new, and trade dress can protect it long term once customers recognize it as yours. Watch the functionality line: neither tool can protect a feature that exists because it works better. Both only cover features that are there for how they look.

Which route fits your product depends on the facts, and it is worth discussing with an attorney.

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