Medford, OR asked in Patents (Intellectual Property) and Intellectual Property for Oregon

Q: Hi, Can a person sue another for a design infringement without having a design patent?

If the products looks similar but both were designed based on prior art teachings. While the accused product is not using any logos/name/images of the first. And the accused product has feature(s) to specifically tell the ordinary observer (both visually and in description) that there is this difference <the ordinary observer can not be confused>

1 Lawyer Answer
James L. Arrasmith
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A: Yes, it is possible to sue for design infringement even without having a design patent. Design infringement claims can be based on various legal grounds, including trade dress, copyright, and unfair competition laws. However, the success of such a lawsuit would depend on the specific circumstances of the case and the strength of the evidence presented.

If both designs were based on prior art teachings and there are features clearly distinguishing the accused product from the original, it may be more challenging to establish infringement. The absence of logos, names, or images from the original design on the accused product can also affect the likelihood of a successful infringement claim.

Ultimately, whether a person can successfully sue for design infringement without a design patent depends on factors such as the similarity between the designs, the existence of prior art, and the ability to demonstrate consumer confusion or deception. It's advisable to consult with a qualified intellectual property attorney to evaluate the merits of your case and determine the best course of action.

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