For many product-focused companies, design often is the product. Differentiation lives in surface ornamentation, overall look-and-feel, and visual details that drive purchasing decisions often long before utility is evaluated. Against that backdrop, many brands are reexamining copyright law as a faster, more flexible tool for protecting product aesthetics.
The U.S. Supreme Court’s 2017 decision in Star Athletica v. Varsity Brands clarified that artistic features of useful articles may be protected by copyright if they are conceptually separable from the product’s utilitarian aspects. In the consumer products context, this has proven particularly relevant for decorative patterns, sculptural features, and non-functional design elements embedded in everyday goods—from housewares and furniture to toys, clothing apparel, and packaging. And courts have shown a willingness to permit copyright claims where design choices are not driven by function alone, giving brands another arrow in the quiver when confronting knockoffs.
From a business perspective, copyright aligns well with consumer product lifecycles. Protection attaches automatically upon creation, often requires no examination or prosecution, and can be enforced immediately—often during the narrow window when a product is gaining market traction and most vulnerable to imitation. For companies managing large product catalogs and frequent design refreshes, copyright may offer a cost-effective way to create enforcement leverage without waiting years for design patents to issue.
To be clear, copyright is not a replacement for design patents, particularly where product configuration or overall visual impression is the primary competitive asset. It will not prevent competitors from adopting similar functional designs, and enforcement still turns on substantial similarity. But for consumer product companies operating in crowded markets, the lesson is clear: design protection works best in layers. In a post-LKQ environment, combining design patents, copyright, and—where appropriate—trade dress can provide the speed, durability and flexibility needed to protect brand-defining designs from fast-followers and copycats.
The Quarles design rights legal team is nationally-recognized for its extensive knowledge and practice experience in this complex and important field. For questions about this article or on how to incorporate design-related legal rights into your intellectual property portfolio, please contact the author(s) of this post directly or send a message to the team via our Contact page. To subscribe to our mailing list and receive updates that highlight issues currently affecting the design rights legal field, click here.