By: Jeffrey G. Sheldon, Esq.

With increasing competition, more and more companies are using legal strategies to differentiate and protect products.  Trade dress rights and design patents are often over looked by many inventors, companies, and even attorneys as a viable way to protect the ornamental appearance of a product or its packaging.

For example, this past August, L’Oreal USA Creative, Inc. received a Notice of Allowance from the U.S. Trademark Office for the three dimensional configuration of its Essie nail polish bottle.  The company also has a patent pending design application.

U.S. Trademark Application Serial No.  86/667,959

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Trade Dress is defined as a product’s “total image” or “overall appearance” and can protect unique product features such as a size, shape, color(s) graphics or design.   Similarly, a design patent covers the visual ornamental characteristics embodied in, or applied to, an article of manufacture.  Lululemon Athletica, Inc. commonly uses design patents to protect its high-end clothing line.  In the U.S. the company has filed over thirty patent and sixty trademark applications and has enforced its rights against other companies like Calvin Klein.

U.S. Design Patent No. 3,645,644

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There are many other benefits to seeking a trade dress registration form the US Trademark Office or a design patent from the US Patent Office, including:

  • Inexpensive process, about $1,500-2,500, to file an application (including fees and costs);

  • Generally easier to obtain than utility patents; and

  • Fast- can be granted in less than one year.

Both trade dress applications and design patent applications can be filed internationally as well.

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