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“Aber ist es Kunst?”

That question—“But is it art?”—was before the German Bundesgerichtshof (“BGH”), or Federal Court of Justice, in a recent proceeding involving the well-known Birkenstock sandal design. Birkenstock Group (“Birkenstock”) had sought relief against three rival sandal makers, asserting that the defendants’ products infringed Birkenstock’s copyright on its sandal design. Exemplary designs at issue are shown below.Continue Reading German Birkenstock Decision Shows the Limits of Copyright Protection for Functional Designs

Design patents in the U.S. typically include two types of shading. The first and most common type of shading used in U.S. design patents is opaque shading, which illustrates a non-transparent or non-translucent surface of an article of manufacture. The second type of shading used in U.S. design patents is oblique shading, which illustrates a transparent or translucent surface of an article of manufacture. Specifically, MPEP § 1503.02(II) states that “[o]blique line shading must be used to show transparent, translucent and highly polished or reflective surfaces, such as a mirror.” Therefore, if the article of manufacture is intended to have some level of transparency or translucency, the USPTO requires that oblique shading be used. Continue Reading Best Practices for Protecting Transparent and Translucent Designs

When there are fewer design elements in a design claim or when the individual elements of the design seem commonplace in isolation, it can be easy to overlook the inventive effort that went into developing a design. Rather than looking to the overall visual impression that those design elements provide as a whole, one can make the fatal error of ignoring a majority or the entirety of the design, considering it to be no more than an “abstract idea.”Continue Reading Sometimes Less is More: Patentability of “Simple” Designs

As commerce moves more and more online, companies are facing unique challenges with respect to protecting their products, and the low cost of entry for online sellers has contributed to proliferations of knock-off and potentially counterfeit products being sold. This is particularly true when the product being sold is a simple disposable or replaceable product, such as a refill cartridge, a duster refill or a coffee pod.Continue Reading Indispensable Strategies for Protecting Disposable Products

The beauty industry is ever changing, and makeup trends and viral product releases can drastically increase a company’s profits.  However, without proper legal protection, competitors can quickly replicate a product, eating into those profits. 

In this post, we will address how design patents and trade dress can be employed to provide protection for various beauty-related tools and products.Continue Reading Protecting the Product: Beauty Products

Two recent decisions by the Patent Trial & Appeal Board (PTAB) highlight the nuances of allowable and impermissible drawing amendments during prosecution of U.S. design patent applications, and provide important guidance to design patent applicants on how to prepare their applications to ensure maximum flexibility during prosecution.
Continue Reading Recent PTAB Guidance on Permissible Drawing Amendments for U.S. Design Applications 

Paisley Park Enterprises, Inc., the music publishing company founded by the late artist Prince, recently obtained a federal trademark registration for the purple color shown below known as “Love Symbol #2” in the Pantone Matching System.  The registration covers music, video, and motion picture-related recording goods in International Class 009.
Continue Reading Prince’s Estate Makes it Rain Purple on the USPTO