Using Patents to Establish Brand
Small businesses and especially startups are often well aware of what a patent can accomplish for their businesses; provide a legal monopoly for their inventions for a period of time. And yet, the effects of a patent can go beyond protection of an invention and can include helping establish a strong brand for the business, which can further enhance the value of the business. How can patents accomplish this objective?
This article seeks to answer that question and is meant as an encouragement to small businesses and startups to utilize their patents to help build their brands.
Patents are part of a group of intangible assets known as “Intellectual Property,” which also include trademark, copyright and trade secret assets. The two main types of patents are utility patents and design patents. Utility patents protect functional novel and non-obvious aspects of a products or process, including its operation, function, use, method of making and structure. Utility patents are valid for a period of twenty years (twenty-one years if the initial patent application is a provisional one) from the earliest filing date of the patent application. Design patents protect non-functional ornamental and aesthetic aspects of products and processes. Design patents have a life of fifteen years from their issue date.
One often unappreciated function of patents is to help establish a brand for the startups, thus adding additional value and credibility to the business. A product or service brand is a trademark. Trademark is generally defined as any feature or characteristic, such as a name, logo, color or color combination, sound, and decorative and aesthetic features, which identifies a product or service to the consuming public and helps differentiate the product or services from same or similar items offered by competitors. Trade dress is a special type of trademark that refers to the overall appearance of the product or its packaging, which can act as source identifiers. As such, trade dress can protect the shape and configuration of a product or of its packaging that are non-functional. The U.S. Supreme Court has ruled that product designs seeking to benefit from trade dress protection must first have achieved a certain level of recognition in the minds of the consuming public, known as “secondary meaning.”
Design patents can help accomplish the requisite consumer recognition for a trade dress by providing a period of exclusivity for the design during which consumers will come to associate the product configuration or shape with its source. A famous example of successful use of a design patent to help establish a brand is the Coca Cola classic bottle. The Coca Cola company obtained design patent protection for its classic bottle in 1915. The exclusivity provided by the patent allowed consumers to identify the shape of the bottle with its source; i.e., Coca Cola. In 1960, after the design patent had expired, Coca Cola filed for and obtained trade dress protection for its bottle shape; a protection which continues to this day.
Descriptive trade names are also incapable of obtaining trademark protection unless they have acquired secondary meaning. Associating descriptive, but commercially catchy trade names with patents will allow them to flourish and take hold in the market and acquire the requisite secondary meaning so that the mark can survive the expiration of the patent and continue to promote and add value to the business.
Establishing a robust intellectual property strategy can make the difference between a startup’s success and failure. An important but often ignored element of that strategy is taking advantage of the link between patents and branding.
© 2018 Dr. Dariush Adli