The USPTO recently announced that it has issued the 1 Millionth design patent! Patent No. US D1,000,000 is titled “Dispensing Comb” and protects the below design:
U.S. Design Patent No. 1,000,000
Design patents are a unique type of patent in that they protect the look or design of an invention rather than the way the invention works. For the above comb, it is the shape of the handle and brush area that is protected, not the way the trigger mechanism works to dispense the product contained inside. According to the USPTO’s press release on this milestone, “The USPTO received over 50,000 applications for design patent protection last year [2022], while experiencing a 20% increase in applications over the last five years.” The USPTO went on to explain that, “Design patent 1 million comes 181 years after printer George Bruce received the first design patent granted in the United States for a new typeface, or font, in 1842. In the intervening decades, design patents have protected the unique appearance of products like Harley Davidson motorcycles and Eames chairs, as well as iconic characters such as Star Wars’ R2D2 and the image of Yoda.” See, https://www.uspto.gov/about-us/news-updates/uspto-issues-milestone-1-millionth-design-patent.
Design patents are an important tool to consider with your overall intellectual property protection strategy. Oftentimes a business will design a product with a unique shape or design that the business wants to prevent others from copying. Sometimes this can be accomplished via a trademark registration, even for three-dimensional objects such as the comb depicted in this design patent. However, in order to become a registered trademark, the item being claimed as a trademark must not be “functional” under the law. And, the public must view the item as a trademark – an indicator of the source of the goods – rather than merely as a pleasing shape or design.
A good example of this overlapping IP coverage is the iconic Coca-Cola bottle design. The bottle shape was first protected by a design patent in 1915 and then again in 1923. See USD48160 and USD636575.
However, design patents, like all patents, expire after a relatively short period of time. Currently, design patents expire after 15 years, even if you are still using the design in commerce. To avoid losing IP protection upon expiration of the patents, Coca-Cola developed a plan to also obtain a trademark registration over the design of the bottle. A trademark registration can last indefinitely as long as the owner continues to use the mark in interstate commerce and files the proper renewal paperwork (and fees) with the USPTO.
In 1959, Coca-Cola applied for a trademark registration which covered “THE DISTINCTIVELY SHAPED CONTOUR, OR CONFIRMATION, AND DESIGN OF THE BOTTLE AS SHOWN.” The registration was granted in 1960 and remains live today. See, https://tsdr.uspto.gov/#caseNumber=72069873&caseType=SERIAL_NO&searchType=statusSearch.
U.S. Trademark Reg. No. 696,147
This means that, while the design patent(s) may have expired on the bottle, you still risk a trademark infringement lawsuit (and loss of all profits) should you package your own beverage in a similarly-shaped bottle.
Relatedly, Coca-Cola also owns a trademark registration for the design of the Dasani water bottle. See https://tsdr.uspto.gov/#caseNumber=78846586&caseType=SERIAL_NO&searchType=statusSearch. That mark is described with: “The mark consists of an S shape design around the neck of the bottle and a series of smaller alternating S and circle designs in a band immediately beneath the larger S designs.”
U.S. Trademark Reg. No. 3,469,572
Obtaining IP protection over a three dimensional design can provide a strategic advantage for your business, but it must be carefully planned and executed. Recall our prior posts about the Scream movie mask and how it failed to receive trademark protection.
Hiring an attorney who can guide you through multiple avenues of protection is one important step in providing you with strategic IP solutions and not merely IP services.
Call or click here to get started on protecting your IP today.
