15:35 • 20 Nov 2008
Notes & Quotes
Protecting your Gems
In the old days, gem cutters relied on trade secrets to prevent others copying their work. But with the pirates steadily improving their reverse-engineering skills, jewellers have increasingly been seeking intellectual property protection. Under US law, there are three main routes open to them:
Copyright: Technically, gem art is de facto protected from the instant of creation. In practice, it is difficult to prove the priority of a design in the absence of a formally registered copyright.
Patents: A gem cut may not be novel enough to qualify for copyright protection but still be patentable, so long as it is different in some way from previous designs. The difficult part is deciding which kind of patent protection to apply for – utility or design. This is because in the case of jewellery, the distinction on which such decisions traditionally rest (that between an item’s ornamental and functional qualities) no longer applies. Jewellery’s function is to be ornamental! As a rule of thumb, if you’ve come up with a simple, geometrical gem cut that happens not to have been used before, you’re better off applying for a design patent. If, on the other hand, you’ve devised a new cutting technique, go for the utility kind
Trade Dress: If a jeweller’s designs are distinctive enough (in other words, if the public come to associate a particular style with a certain designer), they may qualify for protection as Trade Dress. The necessary recognition takes time to develop, but once established, Trade Dress protection can be extended indefinitely.
In the old days, gem cutters relied on trade secrets to prevent others copying their work. But with the pirates steadily improving their reverse-engineering skills, jewellers have increasingly been seeking intellectual property protection. Under US law, there are three main routes open to them:
Copyright: Technically, gem art is de facto protected from the instant of creation. In practice, it is difficult to prove the priority of a design in the absence of a formally registered copyright.
Patents: A gem cut may not be novel enough to qualify for copyright protection but still be patentable, so long as it is different in some way from previous designs. The difficult part is deciding which kind of patent protection to apply for – utility or design. This is because in the case of jewellery, the distinction on which such decisions traditionally rest (that between an item’s ornamental and functional qualities) no longer applies. Jewellery’s function is to be ornamental! As a rule of thumb, if you’ve come up with a simple, geometrical gem cut that happens not to have been used before, you’re better off applying for a design patent. If, on the other hand, you’ve devised a new cutting technique, go for the utility kind
Trade Dress: If a jeweller’s designs are distinctive enough (in other words, if the public come to associate a particular style with a certain designer), they may qualify for protection as Trade Dress. The necessary recognition takes time to develop, but once established, Trade Dress protection can be extended indefinitely.