Clothing Design Patent: Everything You Need to Know
A clothing design patent protects the rights to a unique and distinctive look for an article of clothing. The patent is not for the clothing itself.3 min read
2. When Design Patents Make Sense
Updated July 6, 2020:
Clothing companies may patent unique designs so that other companies can't imitate it. When a person holds the rights to a design patent, he or she can license or sell those rights to a clothing company.
If you develop a great idea for a new accessory and you want to capitalize on it, you might want to get a patent for it. If the Patent Office grants you a patent, you'll have exclusive rights to make and sell the accessory.
If the apparel you create has unique functions, you can patent them with a utility patent. For example, in 2008, Katerina Plew claimed Victoria's Secret committed patent infringement based on a bra the company was selling. Plew had a utility patent on the bra's design, so she sued on the grounds that the company infringed on her creation.
Trends in fashion include adding menswear collections to the same shows as women's wear collections, along with the disruption of the fashion calendar. There are other, significant practices at play in the fashion world — brands are getting design patents to prohibit the copious amount of copying. Both fashion brands that have quickly ascended and affordable luxury lines are impacted by copycat fashions.
Applying for patents isn't new because brands have enjoyed patent protection for designs for a long time. Others have followed suit in an effort to enjoy the protection that patents provide for original, unique, and ornamental designs for their clothing. Copyright and trademark laws don't extend to clothing and accessories, for the most part, so copying them is legal, with the exception of protection provided by design patents.
Pros and Cons of Design Patents
Design patent protection prevents third parties from using, making, or selling products that so closely resemble a patented product that a casual observer wouldn't be able to tell the difference between the two and therefore might purchase the copy. Design patent protection lasts for 14 or 15 years, depending on the filing date.
The United States Patent and Trademark Office used to take a year or more to review design patent applications. Because fashion trends move so quickly — and would often be over by the time the USPTO granted the patent — the office has worked to streamline its procedure for review. Currently, it's possible to get a design patent in about 10 to 12 months. To expedite some methods, expect to pay additional fees, but the review time could be shortened to about six months.
Although patent protection is desirable, patents have their downsides, with two of the biggest being turnaround time and cost. Copyright and trademark protection are less than $500 to register, while patents can cost upwards of $10,000 (this includes associated legal fees).
Turnaround time — including the time it takes from filing to actually being issued the patent — can be around 18 months or more. This time frame is long in the world of fashion because the clothing industry is very seasonal and cyclical. By the time a design patent is issued for some creations, that design will be so out of date that it's unlikely to be copied.
When Design Patents Make Sense
Because of the lag time in getting design patents, brands might only seek protection for staples in their lines. They're usually brands with the significant financial backing to spend on a patent. Brands that have significant accessory lines — such as Louis Vuitton or Bottega Veneta — tend to benefit from design patents more than others.
In 2012, the Innovative Design Protection Act of 2012 (also called the “Fashion Bill”) made its way onto the Senate legislative calendar. The Act extends copyright protection to fashion designs that meet the following criteria:
- The designs result from a designer's creative endeavors.
- The designs provide variations that are distinguishable, non-trivial, unique, and non-utilitarian from previous designs on similar clothing articles.
The protection lasts for three years.
Clothing design patents are usually obtained by big fashion houses that have the necessary resources to get them. However, if someone feels he or she has a unique enough creation that warrants protection, it may be worth looking into patenting the design.
If you need help with clothing design patents, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.