Two Roads to Protecting a Products Look: Design Patents and Trade Dress: An Overview

54 questions on two roads to protecting a products look, answered and cited by the UpLaw editorial team.

• Are design patent applications published while pending?
• Can a design patent be enforced against an independent creator?
• Can a design patent plaintiff stack treble damages on a Section 289 award?
• Can a graphical user interface be protected by a design patent?
• Does a feature disclosed in a design patent stand better than one from a utility patent?
• Does the baton pass from design patent to trade dress happen automatically?
• How are functional aspects handled in a design patent infringement analysis?
• How broadly can a "symbol or device" be read under trademark law?
• How did Egyptian Goddess reshape design patent litigation?
• How do design patents and trade dress work as a relay race?
• How does prior art affect the scope of a design patent?
• How does secondary meaning support a federal trade dress registration?
• How does the crowded field concept differ between design patents and trade dress?
• How does the design patent decide the term-versus-durability tradeoff?
• How does trade dress infringement differ from design patent infringement?
• How do the cost profiles of design patents and trade dress differ?
• How is the scope of a design patent defined?
• How long does a design patent last?
• How many IP rights can one product carry at once?
• Is a design patent or trade dress harder to obtain?
• Must a trade dress plaintiff prove willfulness to recover profits?
• Should a company rely on cross-category fame or file for the specific right?
• What are the Converse factors for proving secondary meaning?
• What are the two main categories of trade dress?
• What did LKQ v. GM change about design patent obviousness?
• What did Samsung v. Apple decide about Section 289?
• What did Wal-Mart v. Samara Brothers decide?
• What does 35 U.S.C. § 171 require for a design patent?
• What does a design patent cost and how long does it take?
• What does a design patent not protect?
• What does a design patent plaintiff not have to prove?
• What do the adidas and Converse cases show about secondary meaning?
• What evidence should a company keep to prove secondary meaning later?
• What happens to a design when its design patent expires?
• What is secondary meaning in trade dress?
• What is Section 289 and why is it called a sledgehammer?
• What is the difference between a design patent and trade dress in one sentence each?
• What is the functionality firewall and why does it apply to both regimes?
• What is the hard filing deadline for a design patent?
• What is the ordinary observer test for design patent infringement?
• What is the strategic lesson of layering design patents and trade dress?
• What makes trade dress the right that waits for you?
• What remedies are available for trade dress infringement?
• What should a company do with a product feature that is purely functional?
• What statute supports trade dress protection?
• Which delivers more value — a design patent or trade dress?
• Why are broken lines useful in a design patent application?
• Why can a competitor escape trade dress liability while losing a design patent case?
• Why does a startup need a design patent at launch rather than trade dress?
• Why does LKQ argue for building trade dress alongside a design patent?
• Why does the design patent's confidentiality during pendency matter strategically?
• Why is "look-for" advertising especially valuable?
• Why is the design patent usually the priority filing before a launch?
• Why is the drawings requirement the most important part of a design patent application?