By Michael Dulin, Margaret Arcaro, and Taryn Elliott
It is all too common that when a product finally achieves commercial success, copycats soon follow with cheap, foreign made imitations. These copycats take dead aim on the market of the authentic goods to capitalize on the innovation, good name and reputation of their maker. Because the knock-offs are often poorly constructed, the copycat can sell them at a much lower price, increasing their likelihood of diverting customers seeking the novelty of the authentic goods.
To guard against the harm of counterfeit goods, companies should develop a comprehensive intellectual property protection strategy, which might include filing utility patents, design patents and product design trade dress. Because utility patents, design patents and trade dress each protect different aspects of a product, they can be strategically combined to provide broad protection against copycats.
For example, utility patents protect the functionality of the product while design patents protect the product’s look and feel. Product design trade dress protects against “confusingly similar” designs. Because each of these rights has different requirements, one must carefully coordinate an overall prosecution and enforcement strategy.
A utility patent protects any new, non-obvious and useful process, machine, manufacture or composition of matter. This might include unique functionality and/or the structure of a product.