Let’s talk about design patents. Just hearing the word “patent” can invoke apprehension that what follows involves a complicated, highly technical discussion about a topic you haven’t thought about since you were forced to take physics in high school. We get it. As enforcement experts, Vorys eControl can help translate the language of patents so you can not only appreciate their incredible value and utility but also make them a powerful part of your brand strategy, particularly when it comes to protecting your brand and products online.
Most brands invest substantial time, money, and resources in the design and redesign of their products and lines. Design patents, unlike other forms of patents, protect the aesthetic, non-functional aspects of a particular good or line of goods and provide the patent holder with a 15-year monopoly over the design.
In general, it is true that traditional patent litigation can be quite lengthy — and depending on the complexity of the case, particularly expensive. However, over the past three years, eCommerce design patent litigation has been the fastest-growing segment of patent litigation in the United States, with approximately 4,000 cases filed each year.
eCommerce design patent litigation is a unique process in which a brand files a single design patent lawsuit against anywhere from 10 to 200 online, foreign sellers of goods that infringe on the brand’s design patent(s). Many of these sellers are selling infringing goods on Amazon, which is what triggers the brand’s interest in targeting the seller. What is unique about this process is the lawsuit is filed in secret, and the brand can obtain a temporary injunction before the sellers even know they have been sued.
This strategic approach keeps the foreign sellers from simply picking up shop, moving their assets overseas, relocating inventory, and reopening under a different storefront or seller name. In most instances, once the sellers realize they are trapped, they capitulate or simply do not appear to defend themselves, allowing the brand to get a quick win without having to expend significant resources. In some instances, the brand may even obtain and collect a judgment from these sellers that is equal to or greater than the brand’s litigation spend.
Amazon APEX is one tool brands can use to enforce their patent portfolio against infringing sales; however, the program is not set up for design patent enforcement, so it is not as useful for this subset.
The first step in adding this dynamic tool to your arsenal is to consult with your attorney to find out if the design(s) you are working on is patentable. Even if you are a CPG brand, you know the consumer values the aesthetic design of your goods. The aesthetic design is an extension of your brand, one of the first ways you engage with and delight consumers, and a builder of goodwill and brand loyalty, so it is often worthy of protection.
If your design is patentable, the time, money, and resources you invested in developing its form will not only give you a fantastic product, but provide you with exclusive use of the design. With this monopoly in hand, you can prevent your competitors or foreign infringers from copying your efforts and cutting into the sales and goodwill you hope to generate with your product launch.
To learn more about design patenting, enforcement, and how to use them to grow and protect your brand, reach out to Vorys eControl’s patent attorney, Aaron M. Williams.
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