Reposted from Intellectual Property Magazine, September 2013

This article discusses how retail brand companies can protect their store layout, and provides effective tips for utilizing a unique store layout as a valuable asset and


Continue Reading Retail Value: DLA Piper’s Radiance W. Harris Explains How to Protect Your Store’s Layout

Repost from Intellectual Property and Technology News (US) – Q1, 2013

By Darius C. Gambino 

Trade dress protection has existed for more than a hundred years in the United States, but for a long time took a back seat to patents, trademarks and copyrights in the intellectual property pantheon. Then came the US Supreme Court decisions in Two Pesos, Wal-Mart and Traffix Devices, raising the profile of trade dress and altering the public’s perceptions. In the 15 years since then, the number of applications filed with the US Patent and Trademark Office seeking trade dress protection has increased dramatically, and so has litigation over trade dress claims. Because trade dress litigation is, in most cases, significantly cheaper than patent litigation, it may soon become a major competitor to patent litigation as a means of resolving disputes.


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Fashion designers and companies can seek to protect their jewelry and other accessory designs through copyright, trademark and/or design patent registrations. Copyrights, trademarks, and patents are separate and independent forms of law and protection; therefore, protection can be obtained in one or all of the three ways discussed in more detail below. 

 
First, a trademark registration protects jewelry and other accessory designs (“accessory” meaning handbags, belts, watches, hats, etc.) that are inherently distinctive or have acquired distinctiveness/secondary meaning in the marketplace. In other words, the design must function as a source identifier. For example, Gucci holds a U.S. registration (Reg. No. 3238962) covering wallets, purses, handbags, shoulder bags, clutch bags, tote bags and clothing apparel for its distinctive horse bit design pictured below.
                                                                                                                                   
                                                                                                                        
Trademark protection, of course, also extends to the product’s name and appearance. The registration process typically takes about one year. 
 
Second, a copyright registration protects designs that are sufficiently creative and artistic. Copyrightable works include logos, artwork, or design elements that are stitched, imprinted or embossed onto fabric; and ornamental aspects of jewelry, watches, belts, and handbags. For examples, see Registration Nos. VA000111813 (artwork on handbags), VAu000699898 (belt and buckle collection) and VA0001664539 (Marquis Loop Necklace and Earring Set). Aspects that are not copyrightable include style, shape, cut, pattern or material of clothing articles and basic utilitarian aspects of jewelry, watches, belts, handbags and other accessories. On average, the registration process takes about three months to one year. 
 
Lastly, a design patent registration protects  the overall aesthetic appearance of a design (i.e., the ornamental aspects of jewelry, watches, belts, hats, handbags, rings, etc.). Specifically, the designs must be new and sufficiently different from all prior designs. For example, Louis Vuitton owns a design patent (Patent No. D466,689) for the “ornamental design for a handbag” and Tag Heuer owns a design patent for the “ornamental design for a watch” (Patent No. D413,815). The registration process takes about one to two years.
 
As a side note, utility patents, which protect how an object operates or functions (meaning, its functional/utilitarian features), usually cannot be used to protect jewelry or accessory designs unless the design includes some type of mechanical improvement. 


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