Advanced Copyright Law on the Internet

(2) staple or commonplace, such as a standard geometric figure, a familiar

symbol, an emblem, or a motif, or another shape, pattern, or configuration which

has become standard, common, prevalent, or ordinary;

(3) different from a design excluded by clause (2) only in insignificant details or

in elements which are variants commonly used in the relevant trades;

(4) dictated solely by a utilitarian function of the article that embodies it;^1470 or

(5) embodied in a useful article that was made public by the designer or owner

anywhere in the world more than two years^1471 before registering the design with

the Copyright Office.^1472 (Under Section 1310(b), a design is “made public”

when an existing useful article embodying the design “is anywhere publicly

exhibited, publicly distributed, or offered for sale or sold to the public by the

owner of the design or with the owner’s consent.”)

(4) Adaptations of Unprotectable Elements

Section 1303 provides that a design employing elements not protectable under Section
1302 may nevertheless be protected if such design is a substantial revision, adaptation, or
rearrangement of such unprotectable elements.

(5) Duration of Protection and Design Notice

Protection commences on the earlier of the date of publication of the design’s registration
or its first being made public, and lasts for a term of ten years (including through the end of the
calendar year of the tenth year). Section 1306 requires designs that have been made public to
bear a design notice comprised of the words “Protected Design,” the abbreviation “Prot’d Des.,”
or the letter “D” with a circle or the symbol “D”; the year of the date on which protection
commenced; and the name of the owner or a recognized abbreviation or alternative name. After
registration, the registration number may be used in the design notice in lieu of the second and

(^1470) Section 1301(a)(2), as amended by the Vessel Hull Design Protection Amendments of 2008, P.L. 110-434,
provides, “The design of a vessel hull, deck, or combination of a hull and deck, including a plug or mold, is
subject to protection under this chapter, notwithstanding section 1302(4).”
(^1471) Section 1302(5) as originally published at 112 Stat. 2906 reads “1 year” at this point in clause (5). However,
this is apparently an error, for Section 1310(a) states that protection shall be lost “if application for registration
of the design in not made within 2 years after the date on which the design is first made public” (emphasis
added).
(^1472) Under the provisions of Section 1310, the registration of a design requires, among other things, the specific
name of the useful article embodying the design, and two copies of a drawing or other pictorial representation
of the useful article having one or more views adequate to show the design in a form and style suitable for
reproduction. Section 1310(i) provides that when a design is embodied in more than one useful article, the
design is protected as to all useful articles when protected as to one of them, but only one registration is
required for the design. Section 1313(c) sets up certain procedures by which a registered design may be
challenged and canceled. Under Section 1314, a registration constitutes prima facie evidence of the facts stated
in the registration certificate.