Many industries, from fashion and luxury, to consumer goods to industrial goods, use unique and innovative product designs to set themselves apart from the competition and provide an aesthetic attractive product for their customers. Protection of innovative designs against competitors and knockoffs is an important part of their business strategy. Such designs traditionally were protected by design patents.
But the Supreme Court’s decision earlier this year in Star Athletica LLC v. Varsity Brands Inc., 137 S.Ct. 1002 (2017), seemingly expanded the scope of copyrightable designs that are incorporated into useful articles. Subsequent district court cases further elucidate how that case is to be applied, and its effect on the scope of copyright protection. These decisions point to a need to rethink protection strategies for product design, and consider increasing use of copyright protection.