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October 04, 2013


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My general impression is that securing a design patent or registering a design is fairly straightforward, the problem lies in enforcing the rights.

Mark Nowotarski


Depending upon who's infringing, enforcing your rights can be fairly straightforward. Certain on-line shopping sites, such as Aliexpress, for example, will take down a competitive listing if you submit your design patent to them. More here



That is a variation on enforcing your rights in that the website will take down copies in its commercial policies. That does not mean stopping copies circulating in other ways - the issue is will a court enforce design patents or find them invalid or not infringed most of the time.

In my experience (not very recent) design patents in the US are very difficult to enforce as compared with utility patents. Indeed some people used to suggest to try for trademark protection for design elements as a more effective legal right.

Oh - another topic to discuss trademarks v design patents.

I occasionally twig economists with geographical designations of origin versus trademarks, what's the difference (one who had written a report critical of GDOs but also backs global trademark rights was rather outraged when I asked was it his consultant to to Kraft status after he got hung up on Parmesan cheese and brands.)


That last comment may need some explantation.

During the GATT Uruguay round, which ran to 1994, there was a tremendous amount of lobbying by industries and companies over the TRIPS. One of the companies that lobbied most fiercely was Kraft Foods. Kraft had two agendas - promoting trademark rights in the TRIPS and especially the recognition of "famous brands" of which it owned many - but simultaneously attacking any idea of recognising Geographical Designations of Origin ("GDOs" of which it infringed many, especially in cheese, but also in other products. In pursuit of these objectives Kraft secured the services of that proto-typical Washington figure - the tame economist, hired to write reports to support whatever conclusion his employer wants (the roll of well known economists who have done this is quite remarkable.)

I can't remember his name right now, but he was connected with The Economist magazine and drove their editorial line for a while on GDOs. Foolishly he (and Kraft) generated two papers at almost the same time, one on the important economic benefits of trademarks to the public, the economy, workers and maybe that Jesus loves trademarks too - and a paper condemning GDOs as the devil's work, undermining employment, confusing the public, job-killing, etc. In any event, both papers were circulating in the same circles at the same time and to say that one was a fertile field for points to be made contradicting the other is an understatement - it was rather pathetic in ways - he was hopelessly compromised and had he not been an arrogant snot, he might have received more mercy ... but he was not and he did not.

It is all about 20 years ago now - but I still remember his reception by a large number of people.

Inter alia - a very good book to read, though it does not address design patents is-

Piracy: The Intellectual Property Wars from Gutenberg to Gates, by Adrian Johns

It does help one to understand the commercial and merchantile interests behind various countries' enthusiasm or lack thereof for IP protection, while reminding everyone that the US economy benefitted from enthusiastic IP piracy - it does not mention design, though for example Lennox pirated designs and entire technology from say Beleek. It also leads to perhaps the view that as more US companies see their commercial edge as being design (e.e., Apple) US attitudes towards design protection may come to allign more closely with say the French and Italians.

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