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> This isn't the case with patents You're confusing "utility" patents with "design" patents. You have obligation to defend the design patents because you'll n

> This isn't the case with patents You're confusing "utility" patents with "design" patents. You have obligation to defend the design patents because you'll need this to apply for trade dress protection.

learc83 14y ago
I never said you didn't have a duty to defend trade dress. It can be diluted just like trademarks. There may be some overlap, and as far as what's covered by the design patent is covered by trade dress you'd have to defend it (or risk dilution), but it has nothing to do with the patent. You can register for trade dress protection without design patents. Design patents expire, trade dress does not, it's definitely possible to be covered by one and not the other.
- veemjeem 14y ago
  Yes, because design patents expire, there's even greater reason to need to defend them while they exist. Design patents and trade dress protection often go hand in hand. In order to show trade dress infringement, one needs to show consumer confusion between the two products, and IIRC one needs around 4 years of solid registration before protection is enabled. So when you don't have trade dress protection yet, you would have to use your enforce your design patents to ensure that consumers won't be confused for 4 years or so. Design patents can be implemented before the release of a product, but trade dress protection is decided by the market after being available to consumers for a certain length of time. A handbag designer like Gucci would enforce their designer handbags with design patents when they release new ones, then enforce them with trade dress later on.
  - learc83 14y ago
    It's still not correct to say there is an obligation to defend design patents. That term implies a certain thing--that what you are obligated to defend will be diluted if you don't do so. The patent itself will not become diluted, thus using the term "obligation to defend" is incorrect. It may be a good idea to use it to help establish trade dress protection, but your design patent will last just as long and still be enforceable even if you choose not to defend it.

learc83 14y ago

I never said you didn't have a duty to defend trade dress. It can be diluted just like trademarks. There may be some overlap, and as far as what's covered by the design patent is covered by trade dress you'd have to defend it (or risk dilution), but it has nothing to do with the patent. You can register for trade dress protection without design patents. Design patents expire, trade dress does not, it's definitely possible to be covered by one and not the other.

veemjeem 14y ago
Yes, because design patents expire, there's even greater reason to need to defend them while they exist. Design patents and trade dress protection often go hand in hand. In order to show trade dress infringement, one needs to show consumer confusion between the two products, and IIRC one needs around 4 years of solid registration before protection is enabled. So when you don't have trade dress protection yet, you would have to use your enforce your design patents to ensure that consumers won't be confused for 4 years or so. Design patents can be implemented before the release of a product, but trade dress protection is decided by the market after being available to consumers for a certain length of time. A handbag designer like Gucci would enforce their designer handbags with design patents when they release new ones, then enforce them with trade dress later on.
- learc83 14y ago
  It's still not correct to say there is an obligation to defend design patents. That term implies a certain thing--that what you are obligated to defend will be diluted if you don't do so. The patent itself will not become diluted, thus using the term "obligation to defend" is incorrect. It may be a good idea to use it to help establish trade dress protection, but your design patent will last just as long and still be enforceable even if you choose not to defend it.