How do you protect how your product looks? Today we’re tackling the Two-Headed Monster of Design IP: design patents and trade dress trademarks.

This is where serious protection and some serious money is for innovators in product manufacturing and design.

I’m Julie King of King Patent Law, and welcome to week 4 of this year’s Spooky Season posts!

This week’s topic covers an often-neglected but important way of using intellectual property law to protect your business, which is protecting how your products look.

Utility patents protect how a product works; design IP protects how a product looks. You may need two different types of protection to fully keep your product safe from copycats: design patents and trade dress trademarks.

In this episode:

• Head 1: The Design Patent (0:52)
• • What a Design Patent Protects (1:05)
  • The Power and Advantages of a Design Patent (1:35)
  • The Drawbacks of Design Patents (2:52)
• Head 2: The Trade Dress Trademark (3:48)
• • What a Trade Dress Trademark Protects (3:59)
  • The Power and Advantages of Trade Dress Protection (4:46)
  • The Drawbacks of Trade Dress (5:08)
• Two Heads Are Better Than One: Why You Need Both (6:42)

Intellectual property is one of the most terrifyingly useful tools you have. If you're a creator or other entrepreneur ready to build a frighteningly powerful brand, you need to know how to use it.

You don't have to face the darkness alone. To learn more about protecting your creations, your name, your business, and your legacy, you can book a consultation with me at kingpatentlaw.com. I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I'm an attorney in Champaign-Urbana, Illinois, and I serve intellectual property clients nationwide.

If this episode helped you survive the horror of learning about how to protect and manage your intellectual property and business, please like and subscribe!

You can find all of my other frighteningly good content on the King Patent Law website, at "Know Your Rights: Your IP and Business Law Playbook" on all major podcast platforms, and at @kingpatentlaw on most social media.

The information provided in this episode is for educational purposes only and does not constitute legal advice or form an attorney-client relationship. You should not act on any information presented here without first seeking the counsel of a licensed attorney for your specific legal needs.

#kingpatentlaw #julieking #intellectualproperty #patent #designpatent #trademark #tradedress #brand #branding #horror #halloween #spookyseason

Trademark genericide is a real-life horror story! What happens when your brand is too good? It dies of success!

Genericide is the legal process where a trademark (like the original name for aspirin) becomes the common name for an entire type of product. The public no longer thinks of the brand; they think of the item itself.

The Tragic Tale of the Escalator: The word Escalator was once a trademark owned by the Otis Elevator Company. Because consumers started using "escalator" to describe any moving staircase, Otis eventually lost the trademark in 1950. Now, any company can use the word.

The Fix: You must always link your brand name to the generic product name.

• BAD: "Let's take the Escalator."

• GOOD: "Let's take the Otis® brand escalator."

Use your trademark as an adjective, not a noun. Never let your customers use your brand name as a verb! (e.g., Don't "photoshop" that image; use Adobe® Photoshop® software to edit that image.)

You don't have to face the darkness alone. To learn more about protecting your creations, your name, your business, and your legacy, you can book a consultation with me at kingpatentlaw.com.

I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I'm an attorney in Champaign-Urbana, Illinois, and I serve intellectual property clients nationwide.

If this episode helped you survive the horror of learning about how to protect and manage your intellectual property and business, please like and subscribe!

You can find all of my other frighteningly good content on the King Patent Law website, at "Know Your Rights: Your IP and Business Law Playbook " on all major podcast platforms, and at @kingpatentlaw on most social media.

The information provided in this episode is for educational purposes only and does not constitute legal advice or form an attorney-client relationship. You should not act on any information presented here without first seeking the counsel of a licensed attorney for your specific legal needs.

#trademark #intellectualproperty #kingpatentlaw #julieking #trademarktalesofterror #horror #spookyseason #halloween

Trademark Terror for T-Shirt Tycoons!

If you’re a designer, a band, or anyone else making and selling apparel, one of the biggest, scariest mistakes you can make is confusing Decoration with Brand Identification.

The Ornamental Trap

To be granted trademark registration, the mark must function as a source identifier. That means consumers must look at the name, logo, or slogan and think: "This is the company that made or sold this."

Here's the terrifying truth about apparel:

1. Ornamental Use is Decoration, Not a Brand: If you print a catchy phrase (like "STAY CREEPY") or a large design prominently across the front of a shirt, the USPTO will usually consider that ornamental use (decoration). People buy it because they like the saying, not because they think the saying is the name of the clothing manufacturer.

2. No Exclusive Rights for Decoration: Unless your mark is already famous (like Nike's JUST DO IT), you cannot stop others from using the exact same phrase ornamentally on their shirts. You were just the first to decorate.

How to Prove You’re a Brand, Not Just a Decorator

To get your mark federally registered on the Principal Register, you must show proper trademark use. Consumers are conditioned to look for the brand in specific, subtle places.

The Ghost (Ornamental Use)

• A large, dominant logo on the chest or back.
• A catchy, full-front slogan (e.g., "Too Spooky for this Planet").
• The design on a coffee mug or poster (decoration).

The Source (Trademark Use)

• A small, discrete logo on a pocket or breast.
• The name on a sewn-in neck tag or label (where the size and washing instructions are).
• The brand name on a hang tag, sticker, or the packaging used to hold the item.

If you're building a clothing line, make sure your brand name or logo is visible in the source-identifying location on the garment itself (the tag, the collar, the hem). That's your best proof that your mark is an actual trademark, not just a spooky apparition!

You don't have to face the darkness alone. To learn more about protecting your creations, your name, your business, and your legacy, you can book a consultation with me at kingpatentlaw.com.

I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I'm an attorney in Champaign-Urbana, Illinois, and I serve intellectual property clients nationwide.

If this episode helped you survive the horror of learning about how to protect and manage your intellectual property and business, please like and subscribe!

You can find all of my other frighteningly good content on the King Patent Law website, at "Know Your Rights: Your IP and Business Law Playbook " on all major podcast platforms, and at @kingpatentlaw on most social media.

The information provided in this episode is for educational purposes only and does not constitute legal advice or form an attorney-client relationship. You should not act on any information presented here without first seeking the counsel of a licensed attorney for your specific legal needs.

#trademark #intellectualproperty #kingpatentlaw #julieking #trademarktalesofterror #horror #spookyseason #halloween

Unlike patents, trademarks can live forever. Patents (like the one for the Ouija board's mechanism) die after about 20 years. Trademarks (like the one for the Oujia brand name) can last forever, provided you keep using them and file the necessary maintenance documents with the USPTO.

A trademark is the only major IP registration that can be renewed indefinitely. This perpetual life is why names like Ouija or Universal Monsters are still highly valuable business assets a century later.

The only magic you have to work to keep the rights alive is to submit your maintenance documents and fees when they’re due, which is at 5 years, 10 years, and every 10 years after that. As the renewal talisman, you have to show examples of the mark in use with the goods or services it’s registered for.

The catch? You must actively use and police your mark. If you stop using it, or if you stop enforcing it against infringers, your mark can become an abandoned "ghost brand."

I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I'm an attorney in Champaign-Urbana, Illinois, and I serve intellectual property clients nationwide.

If this episode helped you survive the horror of learning about how to protect and manage your intellectual property and business, please like and subscribe!

You can find all of my other frighteningly good content on the King Patent Law website, at "Know Your Rights: Your IP and Business Law Playbook " on all major podcast platforms, and at @kingpatentlaw on most social media.

The information provided in this episode is for educational purposes only and does not constitute legal advice or form an attorney-client relationship. You should not act on any information presented here without first seeking the counsel of a licensed attorney for your specific legal needs.

#trademark #intellectualproperty #kingpatentlaw #julieking #trademarktalesofterror #horror #spookyseason #halloween

Trademarks aren’t limited to the words connected with a brand. Visual elements like logos, packaging, and unique shapes, like a Coca-Cola bottle, can be trademarks, too.

The Universal Monsters movies are protected by a slew of trademark and copyright registrations. Most of the images of the monsters are protected by copyright.

However, Universal also registered the appearance of the Wolfman character as a trademark (Reg. No. 1681501), for “entertainment services in the nature of individuals in costume who entertain at amusement parks.” They did the same for their version of Dracula (Reg. No 3529543), Frankenstein’s monster (Reg. No. 1705502), the Bride of Frankenstein (Reg. No. 1710492), and the Mummy (Reg. No. 3529544). Sadly, they let the registration for the Creature from the Black Lagoon for the same thing expire in 2016 (Reg. No. 1707310). For these registrations, since it’s for people in costume, the drawings are more of a “general gist” of the marks, and the examples of use just have to look pretty similar.

They also have applied just this summer to register the Wolfman (Serial Nos. 99299793, 99299795, and 99299792) and Dracula (Serial Nos. 99299788, 99299785, and 99299781) characters as trademarks for a host of foods and clothing.

I want to pause to note that one of the foods is “meat tenderizers for household purposes.”

The description of the Dracula image is “The mark consists of a male figure wearing a formal suit with a prominent, high-collared cape draped over his shoulders. He is standing with his arms slightly outstretched.”

For the Wolf Man, it’s “The mark consists of a male figure standing, facing forward with his arms slightly outstretched. His head and neck are covered in a dense, shaggy mane of dark fur. His hands, also covered in fur, end in claws. He is dressed in a long-sleeved shirt with two pockets on the chest, and loose-fitting pants.”

What does this mean for you? If you have a highly recognizable image associated with your brand, it doesn’t have to be a logo to be registered as a trademark. However, to get the maximum protection for it, you must register it as a design mark to protect its unique look from copycats. Your aesthetic is your asset!

You don't have to face the darkness alone. To learn more about protecting your creations, your name, your business, and your legacy, you can book a consultation with me at kingpatentlaw.com.

I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I'm an attorney in Champaign-Urbana, Illinois, and I serve intellectual property clients nationwide.

If this episode helped you survive the horror of learning about how to protect and manage your intellectual property and business, please like and subscribe!

You can find all of my other frighteningly good content on the King Patent Law website, at "Know Your Rights: Your IP and Business Law Playbook " on all major podcast platforms, and at @kingpatentlaw on most social media.

The information provided in this episode is for educational purposes only and does not constitute legal advice or form an attorney-client relationship. You should not act on any information presented here without first seeking the counsel of a licensed attorney for your specific legal needs.

#trademark #intellectualproperty #kingpatentlaw #julieking #trademarktalesofterror #horror #spookyseason #halloween

Just because someone else has your name doesn't necessarily mean you're doomed! Trademark protection is categorized by goods and services (Classes). This is how you can have DOVE chocolate and DOVE soap.

There are 45 different classes of goods and services available. Thirty-four are for goods, and 11 are for services. Sometimes it can be tricky to figure out which classes your goods or services fit into. For example, non-downloadable videos and downloadable videos are in different classes. Similarly, printed books are in a different class than downloadable books, and both of those are in different classes than selling books in a retail store.

For your goth clothing line, you'll file in the clothing class (Class 25) and retail, wholesale, brick-and-mortar, and/or online sales (all in Class 35). For your horror-themed brewery, you'll file in the beer/beverages class (Class 32), which is not to be confused with the wines and spirits class (Class 33) and maybe in the bar and restaurant services class (Class 43).

The key is the likelihood of confusion within the relevant marketplace. If a band in L.A. is named "The Crypt Keepers" (Class 9/41) and you run a haunted house business in Chicago called "Crypt Keepers" (Class 44), a strong argument can be made that consumers aren't likely to be confused, so it’s ok for both businesses to have that name.

The more closely related the fields of business, the harder it is to show there isn’t or won’t be confusion. Fangtastic Wines probably would cause confusion with Fangastic Beers, even though they’re in different classes.

Making sure your mark is registered in the right classes is frighteningly important when it comes to proper trademark protection and use. This is an area in which DIY and online trademark services often get it wrong by using the wrong classes or leaving out important ones, especially when it comes to clothing, which is a topic big enough for a separate post. I’ve had to fix plenty of those mistakes.

You don't have to face the darkness alone. To learn more about protecting your creations, your name, your business, and your legacy, you can book a consultation with me at kingpatentlaw.com.

I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I'm an attorney in Champaign-Urbana, Illinois, and I serve intellectual property clients nationwide.

If this episode helped you survive the horror of learning about how to protect and manage your intellectual property and business, please like and subscribe!

You can find all of my other frighteningly good content on the King Patent Law website, at "Know Your Rights: Your IP and Business Law Playbook " on all major podcast platforms, and at @kingpatentlaw on most social media.

The information provided in this episode is for educational purposes only and does not constitute legal advice or form an attorney-client relationship. You should not act on any information presented here without first seeking the counsel of a licensed attorney for your specific legal needs.

#trademark #intellectualproperty #kingpatentlaw #julieking #trademarktalesofterror #horror #spookyseason #halloween

Today I'm talking about Trademark Tales of Terror: specifically, how to stop a competitor from committing a trademark chainsaw massacre on your brand identity.

If a patent protects what your invention does (like the Ouija board’s mechanisms I talked about last week), a trademark protects who is selling it. It’s your name, your logo, your slogan, a signature scent or sound, signature packaging, and more, and it's how your customers instantly recognize and trust you. Without it, your brand is vulnerable to copycats and imposters, the ghouls of the business world.

In this episode:

• The Horror of Consumer Confusion (0:38)
• Four Ways Your Brand Gets Haunted (2:29)
• 1. Literal Infringement (The Doppelgänger) (2:37)
  2. Likelihood of Confusion (The Close Call) (3:09)
  3. Brand Dilution (The Slow Rot) (3:46)
  4. The Curse of Genericide (The Mark That Died of Success) (4:29)
• Trademarks Are Nearly Eternal (5:44)

Don't let your brand name be hacked up and stolen. Conduct a thorough trademark clearance search, register your trademarks, be on the lookout for trouble, and be prepared to defend them. That's the only way to ensure your brand lives forever!

You don't have to face the darkness alone. To learn more about protecting your creations, your name, your business, and your legacy, you can book a consultation with me at kingpatentlaw.com.

I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I'm an attorney in Champaign-Urbana, Illinois, and I serve intellectual property clients nationwide.

If this episode helped you survive the horror of learning about how to protect and manage your intellectual property and business, please like and subscribe! You can find all of my other frighteningly good content on the King Patent Law website, at "Know Your Rights: Your IP and Business Law Playbook " on all major podcast platforms, and at @kingpatentlaw on most social media.

The information provided in this episode is for educational purposes only and does not constitute legal advice or form an attorney-client relationship. You should not act on any information presented here without first seeking the counsel of a licensed attorney for your specific legal needs.

#intellectualproperty #trademark #trademarktalesofterror #law #horrorlaw #horror #kingpatentlaw #julieking

The scariest part of a patent to would-be infringers isn't the drawing; it's the claims section.

The claims are the numbered sentences at the end of the patent that legally define the precise scope of protection. If it's not in a claim, it's not truly protected! That’s why it’s of the utmost importance to have strong, well-written claims that properly cover everything you want to protect.

The claims in the Ouija board patent, US Patent 446,054, narrowly defined the board and its indicator. If a competitor made a board with a different shape or a different indicator, they may have avoided infringement. Indeed, many did!

The level of detail in patent claims is important. Too broad, and they probably won’t be granted. Too narrow, and it will be harder to prove infringement if someone makes something slightly different.

This is something DIY applicants and online patent mill services often get wrong. The thing is, you won’t know if they’re not good until either years pass and the application is rejected or you have trouble showing something slightly different is infringement.

Don't let your claims be weak! Working with an experienced patent attorney to craft precise, properly scoped claims is the best way to build a protective fortress around your invention.

You don't have to face the darkness alone. To learn more about protecting your creations, your name, your business, and your legacy, you can book a consultation with me at kingpatentlaw.com.

I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I'm an attorney in Champaign-Urbana, Illinois, and I serve intellectual property clients nationwide.

If this episode helped you survive the horror of learning about how to protect and manage your intellectual property and business, please like and subscribe!

You can find all of my other frighteningly good content on the King Patent Law website, at "Know Your Rights: Your IP and Business Law Playbook " on all major podcast platforms, and at @kingpatentlaw on most social media.

The information provided in this episode is for educational purposes only and does not constitute legal advice or form an attorney-client relationship. You should not act on any information presented here without first seeking the counsel of a licensed attorney for your specific legal needs.

#patent #intellectualproperty #kingpatentlaw #julieking #petrifyingpatents #horror #spookyseason #halloween