If you’re looking to protect the design of your product, trade dress registration and a design patent are two sound options.
Trade dress can cover parts of your product that are non-functional, such as the size, shape, color, color combination, texture, or graphics of the product. This means that you can protect both the way you design the packaging of the product and the way you design the product, itself.
In order to register your product design or “trade dress” with the United States Patent and Trademark Office, you must be able to prove the product design has acquired “secondary meaning.” Secondary meaning exists if the public can identify your product through its design rather than through the product, itself, or through the product name only. You may also prove secondary meaning through evidence that the product design has had vast public exposure.
Once your trade dress is registered, you have better legal tools to protect it from confusingly similar product designs. The registration can last indefinitely; it will continue as long as (1) the product design is used in commerce, (2) the product design identifies the source of goods to consumers, and (3) the registration is renewed every 10 years.
If you cannot make a showing of secondary meaning, a design patent is another option to protect your product design. A design patent, like trade dress, covers the non-functional aspects of a product. To be patentable, the product design needs to have a unique or distinctive shape or appearance that is non-functional. It also must be original.
With a design patent, you have the right, during the length of the patent, to prevent others from making, using, or selling a product that an ordinary observer would find substantially similar to your product. Unfortunately, the protection afforded a design patent is limited in duration.