Protect your business - avoid that your competitors earn the profit you deserve
DESIGN PATENT OR COPYRIGHT? THAT'S AGOOD QUESTION
Welcome, creative entrepreneurs, to a world where your artistry is celebrated and protected. Although I would not call myself an artist, I create unique and protection-worthy “doodles” and graphics in my business and personal life.
Therefore, I know how crucial it is to shield our creative endeavors from being copied or falsely accused of infringement.
But which type of protection is right for your "kind of" creations?
Today, I’ll guide you through the fascinating realm of intellectual property rights protecting the creative works that we produce
(if you don’t know what to think of them, this post may also help you understand why business and IP go hand-in-hand).
This post focuses on an introduction to the two most common and essential options available to protect your art and creative products.
Let’s do this, and empower your business with the tools and copycat protection it deserves.
Therefore, I know how crucial it is to shield our creative endeavors from being copied or falsely accused of infringement.
The differences is WHAT they protect
In protecting intellectual property, it’s important to understand the distinctions between design rights and copyright.
Aesthetics vs. expression of an idea
How copyright and design protection protect a board game
For example, if we consider a board game, copyright law would protect the specific game description and rules that make up the game (if it is a computer game, the code that makes it function would be protected by copyright).
Still, it would not necessarily put you in a position to prevent someone else from independently creating a similar game with a similar experience.
However, design rights can be utilized to safeguard the characters, the board game design (if a computer game, the user interface), and other graphics featured in the game, thereby protecting the overall “look and feel” of the game. It’s important to consider these distinctions when seeking to protect your creative work.
Understanding copyright protection:
As a creative individual, protecting your hard work and ensuring you have the exclusive right to manage how your art is utilized and distributed is important.
Copyright is a powerful tool that enables you to do just that. Copyright allows you to protect your unique expressions and preserve their integrity, from paintings and sculptures to photographs and texts (marketing material, your sales page, or newsletter).
You need proof to stop the copycat
Although copyright may appear to be the primary form of protection for your designs, it does have some drawbacks. Copyright law mainly focuses on safeguarding a creator’s work from being copied by others.
To establish copyright infringement and protect your rights, you must prove that someone has duplicated your original work. If your competitor can provide evidence that they did not copy you and came up with their product independently of your work, you may not be able to do much about it.
Your copyright can turn into reimbursements and damage payments
Nevertheless, if you can establish that your competitor accessed your product and copied you (maybe including your typos or even your name), they will have to stop if they don’t want to face legal consequences.
Often you will be reimbursed equivalent to the value of the product’s production- even without dragging the copycat to court.
However, suppose you can provide evidence of the damaging effect of the copy. In that case, you may even be eligible for a damage payment after a court case has been decided – or you’ve settled with your infringer.
Using your copyright can prevent copycat-attacks
By marking your works with the copyright symbol (©), your name, and the year of creation, you establish a strong foundation for protecting your intellectual property rights. But it’s important to understand that this action mainly serves as a preventive measure. You must monitor your competition and the world wide web to find potential infringers – and enforce your rights.
Harnessing the protective power of design patents:
In certain countries like Denmark and the USA, design protection offers an additional layer of defense for your unique designs and aesthetic expressions.
Design rights safeguard the unique and fresh visual aspects of a product’s appearance. It shields the appearance of the entire product or specific parts arising from its features, including lines, contours, colors, shape, texture, and materials of the product and its embellishments.
However, it solely protects the appearance of the work and not its function. Although, you can still apply for a design registration even if it has a function related to it, like a decorative drinking bottle. This registration will protect only the design of the drinking bottle and not its unique function.
Registering your design is a vital legal step that protects against unauthorized duplication, regardless of the infringing party’s motives.
→💡It is important to note that design registration differs from copyright protection in that the infringing party’s intentions do not influence it. Due to your competitor’s ability to look it up in the design register, it is also much easier to provide proof of your right than copyrights that most countries don’t have registered for.
Timing matters - only unpublished designs become design patents
It’s important to remember that timing is crucial in this process. To ensure the effectiveness of design protection, avoid publicly disclosing your designs before seeking registration. Seek legal advice from professionals to determine the specific requirements and duration of protection available in your country.
In some countries, there is a 6 or 12-month grace period (or deadline) to file a design registration or application after the first mention or presentation in public.
However, this has to be proven and leads to a lot of paperwork (and stress). 🚨 And not all countries accept such grace periods. It’s always best to protect first and then show your design to others.
Design patents around the world - different names, same purpose:
Design patents are known by various names depending on the country. It’s important to understand these variations when seeking protection internationally.
– United States: In the USA, it’s referred to as a “Design Patent.”
– European Union: Each member state has its designation within the EU:
– Denmark: “Designbeskyttelse“
– Germany: “Designschutz” or “Eingetragenes Design”
– Sweden: “Mönsterskydd” or “Designskydd”
– The Netherlands: “Modelrecht“
– United Kingdom: “Registered Design” or “UK Registered Designs (UKRDs)”
There is also a centralized option to obtain EU-wide design protection via the: Community Design Protection.
Understanding these country-specific terms will help you navigate the appropriate design protection channels when expanding your creative business globally.
Duration of copyright and design patents: EU vs. US:
Did you know that in most European Union countries, copyright protection typically lasts for the author’s life plus 70 years after death? However, it’s worth noting that specific durations may vary between countries. For instance, Denmark, Germany, Sweden, the Netherlands, and the United Kingdom all follow this general rule.
On the other hand, the United States has different regulations in place. Here, copyright protection usually lasts for the author’s life plus either 70 or 95 years from publication, which can depend on several factors.
Duration of design patents or equivalent rights:
Design protection in the European Union protects for a fixed period of five years that can be renewed up to 25 years.
EU countries: Denmark, Germany, Sweden, The Netherlands, and the United Kingdom offer design with a similar period of 5 times five years from the time of applying.
On the other hand, design patents in the United States offer protection for 15 years from the grant date.
Copyright and design patents: Not mutually exclusive, but the order matters
It’s important to understand that copyright and design patents (or their equivalents) are not mutually exclusive forms of protection.
design patents and copyrights can complement each other in certain situations
→ However, the order in which you secure these protections is crucial to maximize your options and ensure adequate safeguarding of your intellectual property.
While copyright protection arises automatically upon creating original work and therefore is the first right that may be achieved, some countries recognize a right to your design similarly – but for a limited period.
Design protection before showing, telling or selling
Secure your design rights or patents require proactively by registration or application BEFORE showing or presenting your design to anyone without a confidentiality agreement. Most countries only allow non-public designs can be registered or granted as design patents.
This distinction impacts the timing and sequence of protecting your creative works effectively.
How to determine when to use one form of protection or both?
Determining when it makes sense to have both copyright and design protection or when copyright alone may be “enough” depends on various factors.
Remember other protection options - your business is more that creations, copyrights or design patents
I want to emphasize that copyright protection and copyrights are seldom your only options ( in this blog post, I give a quick and dirty overview of the eight most important intellectual property rights and anti-copy-protection strategies) – although they are often the most affordable. They are related, why I focus on them here, but you should consider further protection options and ask yourself: What if it turns out as a success, a blockbuster that drives my business for years to come?
→💡It’s always a good idea to evaluate all of the angles and aspects of your product for protection, consider the attraction it has on your customers, the function it has, the esthetics – and consider how you are going to make it sell – with or without branding and “how much” this all matters to achieve success.
Back to design patents (or equivalent protections) v.s. copyrights
Now… Here are some suggestions (that can never stand alone and should always be double-checked or discussed with your IP lawyer or patent attorney 🤓. Your situation may need to be handled with certain specific care. I cannot include all scenarios in one blog post💡🚨):
When I would consider both design patents and copyrights:
– Unique and Innovative Designs
– Comprehensive Protection
– Branding and Market Positioning
When I would consider both design patents and copyrights:
- Unique and Innovative Designs: If your creative work showcases a unique and innovative design, it may be worth considering copyright and design protection. Copyright protection will safeguard the overall expression of your creation, while design protection will specifically protect the visual aspects that contribute to its uniqueness.
- Comprehensive Protection: If your creative work has multiple layers of protection, such as creative expression and functional design, seeking copyright and design protection can provide comprehensive coverage. This is particularly relevant for creations that combine functionality with distinctive aesthetics, such as industrial designs or innovative consumer products.
- Branding and Market Positioning: When your creative work plays a pivotal role in establishing your brand identity or market positioning, it’s advisable to pursue copyright and design protection. This ensures that your brand’s creative expression and unique visual elements are legally protected.
When I might think that copyright protection may be"good enough" on its own:
– General Artistic Expressions
– Utilitarian Objects with Minimal Aesthetic Features
– Limited Resources
Let me elaborate a bit on why I chose these three as "copyright-only candidates":
- General Artistic Expressions: For traditional artistic expressions like paintings, sculptures, photographs, or written works, copyright protection alone is often sufficient. These works primarily rely on creative expression and do not necessarily require specialized design protection, as their value lies in the uniqueness of the entire creation rather than specific visual elements.
- Utilitarian Objects with Minimal Aesthetic Features: Utilitarian objects that have limited visual or ornamental aspects may not necessarily benefit from design protection. If the primary focus is on the object’s functionality, copyright protection may be “enough” to safeguard the creative expression associated with it.
- Limited Resources: If limited resources constrain you, pursuing copyright protection alone may be more practical and cost-effective. Copyright protection is automatic and arises upon the creation of the work, whereas design protection typically requires registration or application fees and other legal processes.
Conclusion: Protecting creative products
Copyright and Design are two vital forms of legal protection for designs and creations. Design registration safeguards the appearance of a product, while copyright safeguards the expression of an idea.
Understanding the order of protection is critical in securing copyright and design patents (or equivalent) for your creative works.
By obtaining copyright protection first, you establish a foundation of rights, enabling you to explore design protection or patent options without jeopardizing the novelty requirement by publishing it too early.
Hold off with showing telling or selling your design before your registration is submitted – unless you don’t care about exclusive rights on your design – then you can go ahead any time and reply on copyrights alone.
Deciding whether to seek both copyright and design protection or rely solely on copyright depends on the specific characteristics of your creative works, your branding strategies, and the level of uniqueness and functionality involved.
🧡 It’s important to assess your specific situation and consult with legal professionals to make informed decisions on the most suitable form(s) of protection for your creative works.
