The New Black.

Despite the amount of artistic expression and innovative design involved, artists and industrial designers who produce stylized useful objects such as, furniture, containers, appliances, tools and clothing articles cannot protect their work through copyright registration. However, the products are protectable through the registration of a US design patent. A design patent protects the ornamental design of an article of manufacture that is new, original and non-obvious.

The design patent gives the owner the right to prevent others from making, using, or selling a product that so resembles the patented product that an “ordinary observer” might purchase the infringing article, thinking it was the patented product. The owner is given a monopoly on the design for a period of 14 years. In many cases, a design patent can also be protected as trade dress, extending the registrant’s monopoly on a design for all eternity.

The classic example is the design of the Coca Cola bottle, which was registered as a design patent in 1915. While the patent has long since expired, because Coca Cola was able to use it exclusively for several years, it was able to obtain a trademark registration for the shape of its bottle, foreclosing any competition in the soft drink industry with respect to that design.

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