Trademarks have one major advantage over patents – patents always expire and properly maintained trademarks never expire. However, trademarks can only protect product configurations that are not functional, while patents can protect both functional and non- functional configurations.
In deciding whether a configuration is functional, the 6th Circuit looked at four factors in a recent case dealing with fish hooks:
• Is there a utility patent that discloses the utilitarian advantages of the design?
• Do advertising materials tout the design’s utilitarian advantages?
• Are other functionally equivalent designs available? and
• Does the design result in a simple or cheap method of manufacturing?
James Lindon, Ph.D. Patent Attorney
Lindon & Lindon, LLC
Patents, Trademarks, Copyrights, Pharmacy Law, Litigation
[this is not legal advice - provided for discussion only]
Intellectual Property for the Individual and Small Business: Identify, Protect, Enforce, Defend.
"Fools rush in where angels fear to tread."