Can I get a design patent for a toy that looks like a famous building?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Generally, obtaining a design patent for a toy that closely resembles a famous building would be challenging due to the “simulation” doctrine in design patent law. The MPEP 1504.01(d) cites a relevant case:

“The arbitrary chance selection of a form of a now well known and celebrated building, to be applied to toys, inkstands, paper – weights, etc. does not, in my opinion, evince the slightest exercise of invention….” Bennage v. Phillippi, 1876 C.D. 135, 9 O.G. 1159 (Comm’r Pat. 1876).

This suggests that simply replicating a famous building’s design for a toy would likely be considered lacking in originality. To potentially qualify for a design patent, the toy design would need to incorporate significant original elements or stylization that depart from the mere simulation of the building.