The goal of a great brand is to leverage IP for the long term. If secrets can be kept, the IP never expires. But there are other ways to achieve IP benefits after patent expiration. A strategic approach initially protects a product’s hard functional and manufacturing qualities with utility patents and its soft aesthetic aspects with design patents over the length of their award period. During that time, the goal is to build consumer recognition of the product and brand and develop an emotional tie to the product. Trademarks and copyrights help build recognition that is then carried over to trade dress. When the patents are no longer valid, the product’s brand recognition and association, captured by the trade dress, will be strong enough to carry the majority of the market share as competitors enter the market. The association of the Swiffer colors and package with the Swiffer product connects to the product’s brand identity and, because of the product’s performance, provides a positive feeling toward the product.
Too many companies don’t appreciate the benefits of the full range of IP protection. Many superior technology companies file multiple utility patents with no thought about design protection. Few product developers consider trade dress protection. In the famous legal case Traffix Devices v. Marketing Displays, Traffix had made roadside traffic signs under the protection of a utility patent. The patent protected the utility of a spring stand that allowed the signs to be easily placed yet stand up to nature’s elements, such as wind and rain. The patent expired, and Traffix then claimed trade dress protection on the look of the spring. It lost the case. Once utility is claimed, nonfunctional elements of style or ornament associated with the manufacturer can no longer be claimed. If Traffix had coated the spring with a color to associate the ornamental aspect of the product with the company, it could have claimed trade dress, and the long association of the color with the quality product might have kept it with a significant market share. However, trying to do so after the patent expires is too late, and the company lost part of its product equity in the market.