If you’re seeking a design patent, you should be aware of copyright and trademark laws, too.
With the exception of innovative designs, patents are closely associated with things and processes which are useful in the real world. Almost at the opposite end of the spectrum, copyright applies to expressive arts such as novels, fine and graphic arts, music, phono records, photography, software, video, cinema and choreography. While it is possible to get a patent on technologies used in the arts, it is copyright that keeps one artist from stealing another artist’s creative work.
An exception to the general rule that patents and copyrights don’t overlap can be found in product designs. It is theoretically possible to get a design patent on the purely ornamental (non-functional) aspects of the product design and also claim a copyright in this same design. For example, the stylistic fins of a car’s rear fenders may qualify for both a design patent (because they are strictly ornamental) and copyright (as to their expressive elements). In practice, however, to a particular product courts will usually extend one type of protection or the other – not both.
Patents allow those who create inventions to keep others from making commercial use of the inventions without the creator’s permission. Trademark, on the other hand, is not concerned with how a new technology is used. Rather, it applies to the names, logos and other devices – such as color, sound and smell – that are used to identify the source of goods or services and distinguish them from their competition.
Generally, patent and trademark laws do not overlap. When it comes to a product design, however – say, jewelry or a distinctively shaped musical instrument – it may be possible to obtain a patent on a design aspect of the device while invoking trademark law to protect the design as a product identifier. For example, a surfboard manufacturer might receive a patent for a surfboard design that mimics the design used in a popular surfing film. Then, if the design is intended to be – and actually is – used to distinguish the particular type of surfboard in the marketplace, trademark law may kick in to protect the appearance of the board.
For more information about trademarks, see the Trademarks & Copyrights area of Nolo’s Legal Encyclopedia.