Given the liquid nature of beer, design patents for beer would likely protect the design of the package it is sold in, or the related products used to serve or promote the beer. The shape of the bottle on a shelf can make a beverage stand out or blend in with the crowd. Famously, Coca Cola has demonstrated the usefulness of distinctive packaging through the years in the soft drink industry, dating all the way back to the design patent on their first contour bottle back in 1915.
Beer is of course not only sold by the bottle. Beer sold at the tap can also have its “packaging” protected. Consumers often identify their favorite beers at the bar through the distinctive shape of the handle it is served with. These handles can also be the subject of design patent protection.
Protecting your “look and feel” through related products
Protecting your brand can extend beyond beer itself. Brewers have successfully protected related products in the past, from bottle openers to bar coasters to glassware. Samuel Adams has rather famously sold their specially designed and branded glasses in which to drink their beer. While the glasses are not the primary product Sam Adams sells, they help others know that the people holding them are drinking Sam Adams. Those glasses are the subject of two design patents.
Design patents also do not need to be limited to products sold to customers. With the rise of craft brewing, consumers have become more and more interested in the process of how the beer is made. Design patents on even the brewing equipment can help create a distinctive look in the eyes of curious tour groups, such as the 1960s design patent on a beer fermenting tank pictured on the right (U.S. Design Patent No. D188371).
Using design patents to protect only portions of your product
U.S. law does not require that a design patent cover an entire product. Through a technique known as “portion claiming,” you can get a design patent that claims only part of a design for a larger article of manufacture. Let’s look at a typical way beer is sold at the store: a six pack. Through portion claiming, you do not have to just get a design patent on the whole six pack. You could get a design patent on the bottles, the bottle cap, the label shape and the carrying carton shape.
This can be important when you are looking to protect a line of beers, and not just one variety. Each will have its own unique name and packaging images, but the shape of the bottles, the design of the caps and the design of carrying carton may all be the same, building a cohesive brand identity. With portion claiming, you can get protection on each individual element to better protect from an imposter acting like it is part of your product line.
Typically, design patents are less expensive, quicker and easier to obtain than utility patents. In some instances, they may be easier to enforce than trademarks. Design patents are attainable even for smaller companies with more niche markets.
However, you should be careful that your design patents are not “cheap.” There are many pitfalls during prosecution that an unaware applicant may stumble across. Careful attention has to be paid to the drawings that define the scope of the protection that the design patent will give you. In particular, many design patents are issued with a trademark or logo included in the design. However, a competing brewer will likely use its own trademark, making your protection less useful. It is important to retain an experienced design patent attorney to help guide you.
This insanely thorough feature was contributed by Elizabeth Ferrill and Forrest Jones, attorneys with Finnegan, Henderson, Farabow, Garrett & Dunner, LLP.