It looks pretty; but how protectable is it? Two recent cases highlight how different types of IP law protect the structure of a product. In one case, In DeVinci Editrice S.r.l. v. Ziko Games LLC, a court held that the structure of the “Bang!” card game cannot be protected by copyright. While the plaintiff could copyright the artwork on the cards, the game structure, mechanics and rules are not protectable. Millennium Laboratories, Inc. v. Ameritox, Ltd., a court held that the structure of medical test reports can be protected as trade dress as long as the structure isn’t functional. In this case, the owner chose the structure because it didn’t look like any of its competitors’ reports.
WHY YOU SHOULD KNOW THIS. Functionality. That’s the key. Functionality can destroy copyright or trade dress protection. Both copyrights and trade dress protect something beyond function. Copyright requires the work have at least a minimum amount of creativity and be fixed in a tangible means of expression. An arrangement of items, a recipe or a set of instructions are primarily functional and not protectable. But add a creative element like commentary, graphics, photos or an unusual arrangement of information and you have protectable elements. For trade dress, the protectable element has to be something more than the visual appearance of a product. As discussed in the blog post of 5/3/2016, trade dress protection arises when consumers can identify a source or product by elements of the design beyond the function. So both copyrights and trade dress require the work or design to rise above functionality.