Generally, when it comes to branding a business, ideally you'd want a suite of protection to cover your base. Design patents offer some protection over aesthetic concepts. If a patent is issued on a particular claimed image, enforceability may be fairly clear cut. Either someone else is infringing on the identical design or they are not. Protection under a design patent is however very narrow, limited solely to the image provided within the claims. It can be hard to capture an aesthetic concept within one patent and as such, design patents are easily designed around. Patent protection becomes useful to brand protection as it relates to an aesthetic concept or style when multiple design patent applications are filed, covering an umbrella of aesthetic forms defining the particular concept. This makes it harder and more expensive for another to design around your concept.
You may consider seeking trademark protection together with patent protection for brand aesthetics. A trademark is the association of a brand source with a service or product. The strength of the trademark in use defines the strength of its protection. A strong trademark would be not confused for any other source of services or goods in the market. A weak and unenforceable trademark would be one that has lost its association with the original source and either has become confused or generic in the public arena.
There are different categories of trademarks as follows: trademark, service mark and trade dress. Trademarks and service marks may be any word, phrase, symbl, design, sound, smell, color, product configuration, group of letters or numbers, or combination of such, adopted and used by a company to identify products or services distinguisable from their competitors. A trademark and service mark is linked to and identifies brand source of goods and services sold. Service marks are similar to trademarks in that the same rules apply, except service marks create association with services rather than products sold. Consider for example, how Prudential Life Insurance uses a "Rock" to identify its services or how UPS uses the yellow and brown color to identify itself in the market.
Distinguish a trademark from a tradename, which in contrast identifies a company and not the associated product or services. In some cases, a company will use its tradename as a trademark, attaching its tradename to the goods and services sold. A trademark would be the apple sign and the trade name would be Apple, Inc. A trademark would be the golden arches and the trade name would be McDonald's, Inc.. Both companies attach their trade mark and trade names to their products directly, for greater intellectual property protection.
Trade dress covers the visual impression of the mark: the look and feel of something. For example, the slender features of the classic Coca Cola bottle or the sleek curvy feel of the Apple I-Pod. These elemental features have to be non-functional and the aesthetics alone would conjure up identity of the associated business. A blind folded person touching an I-Pod would recognize it as an Apple product.
Enforceability of a trademark is based on usage and lack of confusion in the market. The law generally follows a use it or loose philosophy. The mark should be used continuously and regularly enforced to protect its unique identity in the market. Unlike patents, where the patent holder need not continuously enforce the issued patent to maintain its enforceability, registered trademarks require continuous work to maintain its force under law and in the market. Not only must you fight against others attempting to steal your identity, you must also fight against too much success, which has often lead to genericism of the brand (think "kleenex" or "coke").
Lastly, there is additional protection through copyrighting. A brand may further be captured by a motto such as "Where's the beef?" by Burger King, or other types of creative form. Copyright protects a wide range of creative, intellectual, artistic creations or "works". Depending on the jurisdiction, copyrightable works may include poems, theses, plays, literature, movies, dances, musical compositions, audio recordings, illustrations, sculptures, photographs, software, radio, television broadcasts, industrial designs, etc. Copyright, however, does not cover ideas or information, only the form and manner in which they are expressed.
Copyright protection is offered through common law and federal law under treatise. Federal copyright offers greater level of remedy protection at both federal and international levels.
This summary provides only a quick description of the types of intellectual property protection available for brand protection. For further information about the types of intellectual property protection applicable to your needs, please contact Attorney Garrels for a thorough consultation.
