How to Copyright a Product Design and Secure Full Protection

Key Takeaways

• Copyrights can protect two-dimensional product designs, such as surface artwork or decorative patterns, but not the functional or utilitarian aspects of a product.
• Three-dimensional product designs may qualify for copyright if they are creative and separable from the product's function.
• A design patent is essential for protecting ornamental features that are part of the product itself.
• Trade dress can protect the visual appearance of a product or packaging if it serves as a brand identifier.
• Copyright registration is not mandatory but provides stronger legal standing in infringement disputes.
• It's essential to assess the type of IP protection best suited for each element of your product design.
• You can find an attorney through UpCounsel to guide you through the best protection strategy.

Discerning how to protect a product design depends on the type of product you have created. In general, applying for a utility patent is the best solution for protecting your product, but you may also be able to secure a copyright or a trademark in some circumstances.

Protecting a Product

If you invent a product that starts making money, there will naturally be people that will want to try to profit from your idea by copying your design. Therefore, after creating a product, protecting your design is of the utmost importance. Your design is what makes your product unique, and if you don't secure your design, it can result in severe consequences.

By protecting your design, you'll be ensuring that you will be the only person that will be able to profit from your product. Fortunately, there are several different methods you can use to protect a product design.

One potential method of securing a product design is to apply for a copyright, which is a type of intellectual property protection. The purpose of a copyright is to protect an artist's work, and you can apply for a copyright even if you never intend to publicly reveal your creation. Copyrights can protect virtually any type of artistic creation:

• Books
• Movies
• Designs
• Photographs

With a copyright, you can stop others from copying your work, whether it's a painting or a musical performance. It's important to remember that copyrights only protect the expression of a work, not the idea that inspired the work, which means copyrights only provide limited protections.

Most forms of intellectual property are automatically copyrighted, but you shouldn't assume that this fact means that your design will have protection. Even with a copyright in place, there are still ways that others can steal your idea. Also, if you don't formally apply for a copyright for your design, it will be nearly impossible to file a lawsuit after someone copies your idea.

Even though you will have some default protections, your work may not be fully secured, especially in regard to its design. For instance, if some part of your design isn't intrinsic to the final purpose of your product, this aspect of your design will not have protection under copyright.

Understanding Copyright Eligibility for Product Designs

When asking how to copyright a product design, it’s critical to understand which aspects are eligible for copyright protection. Copyright law protects original works of authorship fixed in a tangible medium, but not all product designs meet this threshold.

What Is Eligible for Copyright?

• Two-Dimensional Designs: Artistic elements like patterns, images, or surface graphics printed or applied to a product.
• Three-Dimensional Designs: Sculptural or decorative features that are separable from the product’s function (e.g., ornamental shapes on a perfume bottle).

What Is Not Eligible?

• Functional or utilitarian design elements.
• Useful articles unless the artistic elements are conceptually separable from the function.

The key term here is “separability”. If the artistic feature can exist independently of the product's utility, it may qualify for copyright protection.

Filing for a Design Patent

If you want to protect the design of a product, in addition to the product itself, the best idea is applying for a design patent. To be eligible for a design patent, your design should be:

• New
• Original
• Ornamental

A patent is one of the strongest forms of intellectual property protections, and it can secure several forms of intellectual property, including how a product works, a manufacturing method, or concepts. The benefit of a patent when it comes to protecting a product is that the patent defends the underlying nature of the product, not just how it looks.

Before you will be granted a patent, you will need to fulfill several requirements. For example, your invention will be thoroughly examined by a patent inspector to make sure that it is patentable, and a patent search will also be performed to make sure your product does not conflict with a previously registered invention. You should also be aware that some types of inventions can't be patented.

If you've come up with a creative product design, you should absolutely apply for a design patent. Design patents can protect the design of a wide range of products, from cars to computers. Once your design patent application receives approval, you will have rights to your design for 14 years and will be able to stop other people from copying your design.

When to Choose Copyright vs. Design Patent

Creators often wonder whether to copyright or patent their design. Both serve different purposes and offer distinct advantages.

If your design includes both surface graphics and physical shape, dual protection may be possible. For example, a sneaker could have copyrightable surface art and a patentable 3D shape.

Trademark Protections

If you've branded your product with a symbol, word, or design, then you might also want to apply for a trademark. A trademark is used to identify a product's creator, and it can be an important part of marketing your product. In addition to standard trademarks, there is a type of trademark that is specifically used for the design of a product known as trade dress.

The purpose of trade dress is to indicate that you are the owner of a design and that your design cannot be copied by others without your permission. Like design patents, trade dress relates to the appearance of your product and not how it functions.

How to Copyright a Product Design: Step-by-Step Guide

If your product contains copyright-eligible design elements, follow these steps to register your copyright:

1. Determine Eligibility
   Ensure the design is original, creative, and fixed in a tangible medium (e.g., sketches, CAD files, photos).
2. Prepare Your Application
   • Choose the appropriate work type (e.g., “Pictorial, Graphic, and Sculptural Works”).
   • Submit a visual depiction of the design.
   • Indicate whether it is a two-dimensional or three-dimensional design.
3. Register with the U.S. Copyright Office
   • File online through eco.copyright.gov.
   • Pay the appropriate filing fee (generally $45–$65 for most works).
   • Submit a copy (or deposit) of the work.
4. Receive Registration
   Once approved, you’ll receive a certificate of registration. This strengthens your ability to pursue infringement claims.

Trade Dress vs. Copyright: Understanding the Distinction

While copyright focuses on artistic expression and originality, trade dress protects the overall look and feel of a product that signifies its source to consumers.

Trade dress may protect:

• Product packaging (e.g., a uniquely shaped bottle or distinctive box design)
• Product configuration (e.g., the visual appearance of a shoe or furniture)

Key requirements for trade dress protection:

• The design must be non-functional.
• It must have acquired distinctiveness (consumers recognize the design as a brand identifier).
• It must not be confusingly similar to another product’s trade dress.

Trade dress offers broad, potentially perpetual protection under trademark law—as long as the design continues to serve as a source identifier.

Frequently Asked Questions

1. Can I copyright the shape of my product?
   Only if the shape is original, creative, and not purely functional. Otherwise, a design patent or trade dress may be more appropriate.
2. Do I need to register a copyright to be protected?
   Copyright exists automatically upon creation, but registration is necessary to enforce your rights in court and to be eligible for statutory damages.
3. Can I protect both the design and the function of my product?
   Yes. Use design patents for ornamental features and utility patents for functionality. Copyright and trade dress can also be layered where appropriate.
4. What is the difference between design patent and copyright protection?
   Copyright covers creative expression (e.g., graphics or sculpture), while design patents protect the appearance of functional products.
5. Should I hire a lawyer to protect my design?
   It’s often wise to consult an attorney to choose the right protection strategy. You can find experienced IP attorneys on UpCounsel to help you navigate your options.

If you need help with how to protect a product design, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.