Short-Term Design Protection, Part II Automatic Unregistered Design Protection
My earlier post pointed out a need to provide some sort of exclusive rights for original designs for marketable useful articles, at least until some other form of protection can be obtained, such as a design patent or product configuration trademark or trade-dress protection. These forms of intellectual property can require two to three years for a design patent, and over five years to establish secondary meaning on a distinctive original form of product configuration. However, merchandise with a new, distinctive appearance, if it is successful when first marketed, is likely to be copied almost immediately. Competition is likely to penetrate the market before a design patent can issue, and certainly before any trademark or trade dress protection is possible. Copyright protection is not available to protect the design of any useful articles, with the one narrow exception of boats (i.e. vessel hulls). Much of the copy-catting of new products seems to come from overseas sources, and affects products that are easy to copy, such as fashions (shoes, hats, dresses) woodworking tools, toys, etc. Right now there is no short-term protection available for new, distinctive and original product designs, at least not in the United States.
The British and the European Community have both come up with a form of protection that the US could borrow from to come up with short-term product design protection. These are the UK Unregistered Design Right or UDR and the Community Unregistered Design Right or CDR. One or the other could be a model for design protection in the US.
The Unregistered Design Right arises automatically from creating the product design and marketing the new product, i.e., making the design visibly available to the public. The term is short-lived, i.e., from the first marketing until 3 years (for a CDR) or until ten years (for a UDR). Because there is no official registration, if owner of the right has to be able to prove that the design is original and not commonplace for goods of that type, and must also be able to prove creation, ownership, and date of first marketing. That said, going businesses ought to be keeping records of their new product development anyway, so that sort of proof should be readily at hand, and not problematic. Our British and European counterparts have found that a strong letter to an infringer, pointing out the ownership of an unregistered design right, usually causes the infringer to withdraw the product, so those Unregistered Design laws do have value.
For the US, the term of unregistered design protection should approximate the pendency time until other protection, such as a design patent, can be secured. This could be for example 30 months or until a design patent actually issues. But a U.S. Unregistered Design Right would only be available from Congressional action. Currently there is no legislation like this, pending or proposed. If it seems worthwhile, write your Congressman or Senator. They should be eager to assist in the development of businesses that create original product designs.