Q.
I've created a new type of jewelry for men's formal wear that I'd like to protect. Without disclosing too much here, how would I protect the idea of a "cufflink" (if it was a "new" idea). How would I then protect each individual "cufflink" design?
-- Anonymous
A.
Ideas and concepts are not protectable by intellectual property law; however, designs can potentially be protected by both copyright and patent law.
Section 102 of the Copyright Act sets forth the rules on the scope of protection by U.S. Copyright law:
- Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
- In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Jewelry designs fall within the category of "pictorial, graphic, and sculptural works" and therefore are protected by copyright law.
Protection is automatic in copyright law when the work is created in fixed from; however, there are certain incentives to registering the work with the Copyright Office such as providing a public record of the copyright claim, enabling you to file an suit to enforce your rights in a work against infringers, and enabling you to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. Also, you can obtain certain damages by statute if your work is infringed and you registered that work within a certain period of time with the Copyright Office.
The rules for obtaining a patent on a design are a little different and a little more rigorous, as there is no automatic protection under patent law the way there is under copyright law. An inventor is eligible to obtain a patent on a design for manufacture which is new, original, and ornamental. Design patents protect the appearance of the designs rather than their structural or utilitarian aspects (which are protected by a different type of patent). Typically, it will be much more difficult and expensive to obtain a patent than a copyright, but patent protection is certainly something that should be considered when a design is truly novel and original.
While it is not necessary to hire an attorney to register a copyright or file a patent, it is generally a good idea to do so. You are more likely to end up with a filing that adequately protects your work if you have retained a copyright or patent lawyer as appropriate to assist with the process.
-- Kristie Prinz
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