Product appearance, another important aspect of branding, is often implicated in litigation to stop infringements and knock-offs. Ornamental designs can be protected under design patents for a 14 year term if they are new and nonobvious. Design patents enable their owners to stop others throughout the United States from selling products incorporating the patented design or substantially similar ones.

The same design might be capable of being protected under multiple intellectual property laws, such as design patents and copyrights. For example, the Statue of Liberty was originally protected by both design patent no. D11,023 and copyright registration no. 9939-G. The same non-functional design might also qualify for protection under trademark or trade dress law if it has achieved public recognition as a symbol of source or origin.

But care must be taken and legal developments watched, as the Supreme Court has recently intimated it may be necessary to make elections from the various types of legal protection available. Also, time is of the essence with design patents: a U.S. application must be filed within one year after the product's first public use or sale in the United States, or its first description in a printed publication anywhere. If you file abroad first, a corresponding U.S. design patent application must be filed within six months or it will be time-barred. In any event, careful analysis and advice is essential in achieving the optimal blend of legal protections.