Dear Rich: I design jewelry and a store in Chicago has placed a fairly large order (at least for me) for one of my items. I was thinking I should do something to protect the design. Should I file a copyright or a design patent? Short answer dept.: Copyright will probably work best for you. We discuss this issue in some detail in our
crafts law book but we imagine you're too busy filling your order to read the details, so we'll summarize here. (BTW, we've also written about this subject
here.)
What's the diff? The rights you get with a design patent are considered to be broader or more powerful than a copyright. That's because you don't need to prove that an infringer saw your work and copied it -- all that matters is the works are the same. But that advantage may prove more valuable for
big companies with a lot of money to obtain the design patent and to enforce it. The design patent application and filing process can take a year or more and cost one-two thousand dollars. A copyright is automatic -- it exists once you create the work -- and registration, which provides benefits if you need to chase someone, typically takes three to six months and costs under $50. Copyright will last for your life plus 70 years; a design patent lasts for 14 years. In addition, there are many rules for design patents that could disqualify it as an option for you. For example, if your design has been offered for sale or images of it have been published more than a year ago (referred to as the
one-year rule), you cannot now file for a design patent. Not all designs are protected under design patent law. The USPTO will not issue design patents for 'surface ornamentation' (i.e. two-dimensional illustrations such as drawings). So, if you're only decorating the surface of an object, you may not qualify. For all these reasons, we'd suggest passing on design patent protection.
