This article reviews the television show “Shark Tank” on a weekly basis, with a focus on the intellectual property (IP) embodied by the products or business ideas each contestant pitches on that show. As always, keep in mind the following types of IP protection:
- A utility patent is used to protect the functional aspects of an idea, and this is what the Sharks (judges) are for the most part referring to when they inquire into how contestants have protected their idea.
- A design patent protects the ornamental appearance of an article.
- A trademark protects any word, symbol or design that functions as a source identifier. This is generally what the Sharks are referring to when they discuss “branding.”
- A copyright protects a work of authorship (e.g., writing, sculpture, artwork, software). This is not often discussed on the show, but is a strong form of protection for certain works.
One of the interesting pitches this week was made by Naturally Perfect Dolls, LLC. That company is dedicated to creating a line of multi-cultural dolls that embodies a full spectrum of beauty.
With so many toy dolls available in the marketplace, what is the best way to protect the design of a toy doll? From an intellectual property standpoint, an issue is whether it is possible to protect these types of toy doll designs through copyright protection.
As a starting premise, the Copyright Act states that copyrights cannot be used to protect a “useful article.” A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples of “useful articles” include the overall shape or design of a car, an airplane, clothing, a toaster, a television set, or a golf ball.
Since a toy doll (or any toy for that matter) serves a utilitarian function--it is provided for a child’s play--is a toy doll then a “useful article” that cannot be protected by copyright? As one court stated, “children need toys for growing up... a toy airplane is useful and possesses utilitarian and functional characteristics in that it permits a child to dream and to let his or her imagination soar.”
Thankfully for toy designers and the toy industry in general, many types of toys have been found to qualify for copyright protection, in whole or in part, as “pictorial, graphic or sculptural works” as defined by the Copyright Act, 17 U.S.C. § 101. In recent years, we have seen copyright litigation relating to the “BRATZ” line of dolls, G.I. Joe dolls, and the frizzy-haired “troll” dolls. Even doll clothing was found to be protectable by copyright.
Many other types of toys have been found to be protected by copyright as “pictorial, graphic or sculptural works,” including puzzles, board games, and toy vehicles.
For those out there who have an idea for a toy and are looking to pitch it to a toy manufacturer, you may wish to file for copyright protection on your toy design before sharing your idea. Copyright registration is fairly straight-forward, although there are some technical traps, and it is always a best practice to work with a copyright law professional.
In addition, as discussed in prior articles, it is possible to seek overlapping intellectual property protection on the same design or invention. For example, in addition to copyright protection, toy dolls can also be protected by design patents, although a separate design patent would have to be filed for each distinct toy doll. Some board games are protected by utility patents. The overall look and packaging of a toy or game can be protected by trade dress.
Naturally Perfect Dolls eventually landed a deal with “shark” Daymond John.
That wraps up Episode 12 of this season of “Shark Tank.” Check this post next week when we see who swims with the Sharks, and who sinks.
Reprinted with permission from the January 6, 2017 issue of The Legal Intelligencer ©2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
- Shareholder
Michael’s natural and engaging approach in laying out alternatives and potential outcomes is genuinely appreciated by clients. He advances their causes with all-encompassing intellectual property portfolio management ...
Subscribe
Recent Posts
- The Expiration of the After Final Consideration Pilot Program 2.0 (AFCP 2.0)
- Patently Unclear: Why Result-Oriented Claims Don’t Make the Cut Under 35 U.S.C. § 101
- Make Your Invention The Priority, What Track-1 Can Do For You!
- Navigating Final Rejections in Patent Prosecution: AFCP 2.0 vs. 37 CFR § 1.116
- A Clear POV on Patent Eligibility Under 35 U.S.C. 101: Contour’s Claims Zoom Back Into Focus in Contour v. GoPro
- Understanding the Recent Federal Circuit Decision in Broadband iTV, Inc. v. Amazon.com, Inc. on Patent Ineligibility
- Federal Circuit Clarifies Obviousness-Type Double Patenting in Allergan v. MSN Laboratories: The Impact of Patent Term Adjustments on First-Filed Patents
- The Risks and Rewards of Using Open Source Software
- Don't Let Your Trade Secrets Walk Out the Door With Your Employees: Patent Them!
- Federal Circuit’s New Test For Design Patent Obviousness Will Change Everything
Archives
- September 2024
- August 2024
- June 2024
- May 2024
- April 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- October 2022
- August 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- November 2019
- October 2019
- September 2019
- June 2019
- April 2019
- February 2019
- January 2019
- October 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- August 2017
- July 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017