Copyright vs Design Patent Protection


Copyright protects any original work of authorship that has been fixed in a tangible medium of expression. A work is automatically protected by copyright when it is created; however, copyright registration is required prior to filing a copyright infringement lawsuit. This is important because copyrights are not self-executing; rather, their value resides in the threat of enforcement through litigation (whether that threat is real or merely perceived by the would-be infringer). Copyright consists of a bundle of exclusive rights that include the exclusive rights to reproduce, distribute, display, and perform the copyrighted work; as well as to make derivative works. The term of a copyright extends for the life of the author plus 70 years. If, however, the copyright is deemed to have been created by a business, the term of the copyright will be the shorter of 95 years from publication or 125 years from creation. A copyright is relatively inexpensive to procure. The Copyright Office will charge a $55 registration fee. If expedited processing is required, the Copyright Office may grant expedited processing for an additional charge of $800. The permissible reasons for granting a request for expedited processing include pending or prospective litigation; for customs-related issues; and in order to meet contract or publishing deadlines. If an attorney is retained to guide the copyright registration process along, attorneys’ fees will likely be approximately $400. Assuming one does not pursue expedited processing, it typically takes between three to six months to obtain a copyright registration.

Design Patents

A design patent protects a new, original, and ornamental design for a useful article of manufacture. A design patent prohibits others from making, using, offering for sale, selling, and importing the patented design. Design patent applications must be filed within one year after the first offer for sale, public disclosure, or public use of the design. The term of a design patent is 15 years from issuance. Attorneys’ fees for preparing and filing a design patent application will typically range between $500-$1,000. The U.S. Patent and Trademark Office fees will likely be $480. Further, should a professional illustrator be used to prepare the required graphical depictions of the design, such services will likely cost approximately $500 (on average). A design patent typically takes approximately one year to procure.

As a final point of comparison, independent creation is a defense to copyright infringement, but it is not a defense to design patent infringement. Copyright infringement requires actual access to the copyrighted work and substantial similarity between the copyrighted work and the accused work. An owner of a design patent need not prove an accused infringer’s access to his or her design.

Client Reviews
When I first started looking for a lawyer in the US, I had no idea what to expect. I represent an international online retailer from China and we were unfamiliar with the US legal system. An urgent legal message from the plaintiff regarding a trademark infringement case started my search for an experienced trademark lawyer. After calling and speaking to a wide variety of costly lawyers and law firms, I realized that Ted was one of the few personable, professional, and intelligent options that I came across during my search. Not only did he show me that he valued my time, but also my opinion and decisions regarding the case. If you are currently looking for an experienced trademark lawyer for your case, I strongly recommend you give Ted or his office a call and see what they can do for you. 老单
I work with Theodore Chiacchio through my own intellectual property law firm and trust his knowledge to help my clients enforce their intellectual property rights. From working with Ted, it is easily apparent that he has been practicing IP law for many years. Ted is extremely thorough, has great attention to detail, and is a master in his craft. Scott Nyman
I am a financial executive who has worked in the life sciences industry (pharma/biotech/med device) for over 15 years now. I have known Ted for over 20 years, during the course of which he has provided to me patent and other intellectual property-related advice. Ted has an extraordinary depth of patent law knowledge gained from many years of practicing at top tier corporate law firms. I find him to be incredibly thorough, thoughtful, practical and responsive and look forward to continuing to benefit from his capabilities and guidance in the future. Scott Kain