This question results from a common myth that design patents cover original artistic designs. A copyright, and sometimes a trademark are better protection unless the design is functional in nature. This guide clarifies this common misconception.
Can I get a design patent on my artistic print design?
If your print designs are your original works of authorship, you already have legal protection. Copyright protection subsists in original works of authorship fixed in any tangible medium of expression. 17 USC 102. You should "register" that copyright protection [see www.copyright.gov] to take advantage of additional protections, such as ability to sue to enforce the protection. 17 USC 411http://www.law.cornell.edu/uscode/text/17/411.
Why a Design Patent can Hurt You.
Filing for a design patent on a copyrighted work of this nature is counterproductive, since it dedicates about 80% of your term of copyright protection to the public for free, in fact for less than free as you have to pay quite a bit to get a design patent. Why is that? Because design patents only last 14 years from issue while copyright protection lasts for 70 years after you die. Once a design patent expires, whatever is in the design patent becomes public domain, even if it would otherwise be protected by copyright.
When IS a Design Patent Best?
When the design is for a useful functional item. For example the most prolific American inventor in history is Donald Weder of Highland, IL with over 1300 patents (Thomas Edison had 1023). He has several hundred design patents on virtually every new type of floral grass and floral paper and flower pot and as a result has earned millions of dollars in licensing fees from the floral industry and has built one of the top floral supply companies in the world http://www.highlandsupply.com/ Xerox for years obtained patents on the shape of its photocopiers. Where the ornamental appearance of a function item is the creation, copyright is not available but design patent protection may be. In addition, if the ornamental appearance becomes linked in the mind of the public with a particular brand or company, trademark protection exists and should be registered, as that can last FOREVER.
What About Trademark Protection For A Design
Trademarks are words or symbols that identify a common source of products and distinguish such products from competing products of others. If the design develops a reputation association with a single source of supply, such as a PEZ dispenser, a COKE bottle, and the like trademark protection exists. Trademark protection exists in the US upon first use in commerce by virtue of Federal and state law. The Federal law was enacted under the authority of the Commerce Clause of the US Constitution so for Federal trademark protection to attach, use in commerce is necessary as otherwise the Federal government would have no power to regulate the trademark. However, "application" for registration can be made prior to use and there are occasions when that makes sense. See an IP attorney for guidance.
What Kind of Lawyer Do I Need To See About Protecting My Design?
An intellectual property law attorney ["IP Attorney"] that is a registered patent attorney. Some IP attorneys only handle trademark or copyrights and some that handle patents are not "registered" [licensed by the US Patent and Trademark Office, the "USPTO" to represent others before the USPTO]. You want one that can and does prepare and file applications for Federal protection of all 3 types of IP protection, copyrights, patents and trademarks so whatever protection is available and best suited for you can be obtained. A lawyer that only handles one or two types of IP has an understandable bias toward recommending that type of protection even when it may not be best.