Protecting Product Configurations: Design Patents and Trade Dress Compared: A Comprehensive Analysis

61 questions on protecting product configurations, answered and cited by the UpLaw editorial team.

• Can the same product shape be protected by both regimes at once?
• How can advertising prove functionality against you?
• How can a shape that earned secondary meaning lose it?
• How do alternative designs cut in opposite directions across the regimes?
• How do design patents and trade dress compare across every major axis?
• How does a designer triage a pour-over dripper's features?
• How does the design patent beat a clearly branded knockoff?
• How does the design-patent ornamentality screen work?
• How does the Hague Agreement work for design protection abroad?
• How does the nature of the threat drive the choice of right?
• How does the relay race complete over the long game?
• How does trade dress travel internationally?
• How do the drawings define a design patent's scope?
• How do the terms of the two rights compare?
• How do the two functionality regimes cross-pollinate?
• How is trade dress infringement judged?
• How low is the functionality bar after Ezaki Glico and PIM Brands?
• How must trade dress be articulated, and how does its scope compare?
• How should the launch filing be structured?
• Is a design patent expensive relative to a utility patent?
• What are the drafting traps in design-patent claiming?
• What are the seven key takeaways from the comparison?
• What does design-patent infringement NOT require?
• What does design-patent prosecution actually involve?
• What does trade dress protect, and from which constitutional source?
• What do Steps 2 and 3 of the framework ask?
• What evidence proves secondary meaning?
• What happens when a design patent expires and no trade dress has matured?
• What is aesthetic functionality, and where does the alternatives inquiry live?
• What is Step 1 of the decision framework?
• What is the bottom line on remedies?
• What is the "cheat sheet" rule about expired utility patents?
• What is the choice a company faces when protecting how its product looks?
• What is the clearly-labeled-knockoff problem?
• What is the compact version of the whole decision matrix?
• What is the design patent's constitutional bargain?
• What is the hand-off logic of the relay race?
• What is the Inwood test, and how did TrafFix sharpen it?
• What is the most common self-inflicted wound in this area?
• What is the ordinary observer test for design-patent infringement?
• What is the takeaway on how each right is obtained?
• What is the tension between the two regimes in one sentence?
• What is the trade-off of electing § 289 total profits?
• What is the TrafFix trap in sequencing the two rights?
• What is the underused confidentiality advantage of a design application?
• What is the Wal-Mart tiebreaker when characterization is unclear?
• What Lanham Act remedies are available for trade dress?
• What makes 35 U.S.C. § 289 an extraordinary remedy?
• What other rights belong in the layered strategy?
• What should a company expect when trying to register product-configuration trade dress?
• What subject matter does each regime address?
• What three features distinguish a design patent from a utility patent?
• Where does registered trade dress sit between the extremes?
• Who bears the functionality burden, and how does registration change it?
• Why are design patents and trade dress a relay race rather than an either/or?
• Why can product design never be inherently distinctive?
• Why do both regimes wall off functional features?
• Why does a design patent ask nothing about consumer recognition?
• Why does a new product have no worthwhile trade dress on launch day?
• Why does the packaging-versus-design characterization matter so much?
• Why is unregistered trade dress "free" but expensive?