Josh Owen, who runs his eponymous design studio in New York and chairs the Industrial Design Department at Rochester Institute of Technology, says one key to defending designs against copycats is being first in the marketplace. He warns his students, "Don't hold your ideas so close that you become a paranoid troglodyte hiding in your basement holding onto these ideas. You have to strike a balance between being a steward of your ideas and finding partners who can help protect them."
Listed Below Are Your Legal Options on How to Protect Your Work
The options for legally protecting a design are complex, especially with changes to patent laws scheduled for this year. It is best to consult with an attorney to figure out the most cost-effective methods. "It's better to invest the money upfront and get the protection," says lawyer Marc Misthal of Gottlieb, Rackman & Reisman, "because it's often costlier to compete with and chase down knockoffs."
Here are various levels of protection available to designers. And one last piece of advice from Misthal: When licensing your work, make sure you try to maintain ownership of the rights (as opposed to handing them over to the person who's manufacturing and distributing your design).
- Copyright protects artistic expression (i.e., not the idea itself, but the way it is expressed). A painting, movie, song or piece of writing can be copyrighted, but a functional item like a chair cannot. However, if the chair's form is unusual enough to qualify as sculpture, or if it features handcrafted scrollwork or other artistic elements, it might be eligible for copyright protection. The U.S. Copyright Office charges a $35 electronic filing fee; once granted, the copyright lasts for the life of the creator plus 70 years.
- Trademarks identify the product's source. A trademark protects any identifying feature (e.g., a product name, logo or signifier, such as Burberry plaid or the red soles on a pair of Christian Louboutin shoes). The government charges $275 to $375 per claim, and the acquisition process can take several years. Trademarks last forever.
- A utility patent protects a mechanical innovation (e.g., a new way to fold a chair).
- In legal terms this mechanism must be "novel" and "nonobvious," meaning that in the eyes of the U.S. Patent and Trademark Office examiner, even someone skilled in that area would not have thought of it. This is the most expensive protection to obtain--about $7,000 to $10,000--and takes on average three to seven years to secure. It lasts 20 years.
- A design patent protects the look of a product (anything from handbags to furniture).
- As with a utility patent, the look must be novel and nonobvious. Typically these patents take 12 to 18 months to secure, cost an average of $2,500 to $3,500 and stay in effect for 14 years. "More people should take advantage of these," Misthal says. "They're very powerful--Apple beat Samsung on design patents." (Applications for design and utility patents must be filed within one year of the product being sold or shown publicly.)
Hope this helps!
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