New Canoe commercial design. Possible?

Been studying canoe designs lately. It seems like there are only so many ways to skin the cat on a canoe design. Length, breadth, tumblehome, rocker, bow/stern shapes, decks, thwarts, seats....etc.

Only so many variables and only so many permutations. Just how different from a published commercial design should a "new" canoe design be to not violating someone's copyrighted design?

I mean, taking an established commercial design and adding a few inches here, a little more or less rocker there....is that enough? I wouldn't think so.

And with all the commercial designs out there, how would one know if they had a unique, copyrightable design?

Thoughts?

 

A commercial design is not necessarily protected. Unless they have a patent or copyright it may be a copy or slight variation from a previous non-protected design. Are you trying to market a canoe?

 

Not immediately. I have over 45 years of canoeing experience in a wide range of designs. I am planning on spending the next year trying to design my own, build it, and, it it works and the stars align and I have the passion at the time, maybe sell designs or boats.
Totally small scale.
But it got me thinking about how many times you can possible design the canoe and is there any new ground to be tread.

 

The shape may be simular but changing the material changes the design. New materials and techniques allows for new designing.

 

Good point. Same lines, different material/technique.

 

And as Gonzo said, a canoe design may not be protected. I doubt very much any canoe hull shape could be protected because it's been around for thousands of years. Maybe build techniques or construction could be patented if someone had a new way of building a canoe. You can trademark a brand but not the word canoe. For instance Gheenoe is trademarked but the maker doesn't call it a canoe even though it really is one slightly altered. The same is true of many boat hull designs. The basic design may have been around for a long time and can't be patented but some significant change to it can be.

There is a law called the Hull Design Protection Act which allows builders to register a design with the Patent/Trademark Office, but it's not a patent. It's just to protect builders from having someone splash a mold off of an existing design, and it has to be unique in some way. It would take a stretch to say a canoe was a unique design.

 

The shape of a watercraft is not covered by copyright.

My understanding of boat design "rights" in the United States:

Disclaimer: I am not a lawyer and the information below is not intended as legal advice. The information below are based on research into United States law.

Utility Patent 20 years. Must be applied for and granted. Most boat designs and elements of boat designs don’t qualify for a utility patent because they don’t meet the required conditions. Validity of a patent is only established through litigation. After 20 years the contents of a utility patent are public domain.

Design Patent 14 years. Must be applied for and granted. Protects only the original aspects of the appearance and ornamentation of an object, not it’s functional aspects or construction. Validity of a patent is only established through litigation. After 14 years the contents of a design patent are public domain.

Vessel Hull Design Protection Act 10 years. Registration must be applied for and approved . Designs which are covered by a design patent are not eligible for VHDPA registration. Covers the shape and the hull and deck if they are sufficiently unique. “Protection is afforded only to vessel hull designs embodied in actual vessel hulls that are publicly exhibited, publicly distributed, or offered for sale or sold to the public on or after October 28, 1998.” Application for registration has to be made within two years of the first public showing of the hull. Once the 10 year term expires the design is in the public domain.

Copyright Term varies depending on when the work was created, and for works created before 1978 if and when the copyright was registered. For more information see "Duration of Copyright https://www.copyright.gov/circs/circ15a.pdf Works created after 1977 do not require registration or notice. Terms for works which qualify for copyright are very long. In general copyright applies to “original works of authorship”. Artwork is covered by copyright to the extent it is non-functional. Functional objects are not covered by copyright. Boat plans which are original may be covered by copyright and can’t be reproduced without the permission of the copyright owner (other than within the fair use exemption). However the knowledge in the plans isn’t covered so boats can be built from copyright plans without infringing on the copyright. The "First sale doctrine" allows someone who has purchased a copy of a item subject to copyright to sell that copy of the item, but not to create additional copies of the item for sale.

Trademark Indefinite. “A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.” The name of a boat design such as “Laser” or “Sunfish”, or of a manufacturer such as “Benateau” may be a trademark and if so can only be used by the trademark owner. However, a trademark is not a design so ownership of a trademark does not confer any rights to a particular design.

Trade Dress Indefinite. Trade dress are the unique, visual, generally non-functional elements of a product (or its packaging which is unlikely to apply to a boat) which are identified with its source. Once rights to a trade dress are established they can last indefinitely. Registration is not required though there are advantages to registering a trade dress. I assume that similar to a trademark, trade dress has to be defended or rights to it may be lost. Trade dress appears to have been the primary basis of Hinckley’s claims concerning its “picnic boat” designs. Only certain elements of a boat’s design could constitute trade dress.

License Agreements and Contracts Term depends on the agreement. Private agreements only enforceable by one of the parties which entered into the agreement. An example would be a license agreement between a designer and a builder under which the designer agrees to furnish the builder with plans for a boat and the builder agrees to pay a fee, build only one boat from the plans, and not allow anyone else to build a boat from the plans. Presumably this type of agreement is what is meant by statements such as “buying a set of plans only allows one boat to be built”. A license agreement can also include a requirement that the plans cannot be transferred to another party without their agreement to the license terms. Someone who is not a party to the license agreement or contract cannot be forced to abide by its terms, nor can they require the parties to the agreement to behave in a certain manner. Museums and others who own plans can require agreement to a license agreement which may restrict building of boats to the plans as a condition of purchasing copies of the plans. However owner of plans cannot restrict the building of boats of the designs by parties who did not agree to the license conditions.

David Cockey

Rockport, Maine

7 December 2010

Revised 31 March 2011

Revised 10 September 2018

Revised 28 January 2019