Fashion Patents

Fashion patents are those that give a creator the sole legal right to his or her creation, whether it be a product, design, or process related to the fashion business. In the fashion world, the primary way to gain an advantage over other competitors is to be creative, original and innovative.

By obtaining a patent on a unique creation, a company is protecting its right to its own intellectual property. However, many small- and medium-sized businesses fail to pay any attention to this type of protection, thus putting their unique creations at risk of being copied.

Types of Intellectual Property

Intellectual property is an umbrella term used to describe the protection of ideas or intangible property. Intellectual property covers three different areas:

The protections offered by each of these three categories all try to incentivize creativeness, innovation, and development.

Copyright

Copyright is a type of protection for literary or artistic work that is original. It does not include anything that is physically functional. Over a century ago, the United States Copyright Office determined that fashion is functional, and thus cannot be subject to copyright.

However, while the article of clothing itself is considered functional and thus cannot be copyrighted, the design of the article of clothing can be copyrighted. Another exception to the general fashion rule is jewelry. Jewelry is not considered functional because it is more comparable to sculptures or art, and art is copyrightable.

Patents

The second category of intellectual property is patents. In order to be patentable, a creation needs to be useful and original. Useful designs that have been patented are things such as zippers, Velcro, astronaut suits, and Kevlar. Historically, however, design patents have generally not been pursued by the fashion industry because they are often prohibitively expensive — anywhere between $6,000 to $10,000 — and not worth the hassle.

This is especially true because trends in fashion often change year to year, so getting a patent is not worth it unless there is a design that will be repeated each year. However, recently, designers are starting to pursue patents because of the increase in cheaper, more affordable knockoff products.

Trademarks

The last category of intellectual property is trademarks. Trademarks cover signs and symbols, and in the fashion industry, brands. Brands are incredibly important when it comes to fashion, and fashion companies will go to great lengths to protect their unique brand. Because fashion patents are harder to get, many fashion companies will use trademark protections instead.

Trademarks are somewhat cheaper to get than patents and typically take about 4–6 months to obtain. While trademark protection cannot normally protect the entire product, it can protect the logo or symbol on that product, which is some form of protection but is definitely considered a disadvantage of trademarks. Because of this, trademarks are more valuable to bigger brands, like Nike, where people can easily recognize the Nike logo.

Fair Use Defense

The “fair use” defense is relevant to copyright and trademark law. In the United States, the fair use defense is used when someone uses a copyrighted or trademarked creation and asserts that it was legal or fair because it was used in a limited context. For example, if you are a critic and you are writing a review of a book or a play, you can use a brand name and it will not be considered trademark infringement. Another example is if you are using images for an educational purpose, it will not be considered infringement. If a person falls under one of these scenarios and is being sued for infringement, they can assert the fair use defense as long as they prove the use was in a limited context.

Legal Actions Brought by Designers

As stated above, not many designers seek to obtain intellectual property rights on their creations for a number of different reasons. That is why it’s possible to see knockoffs of big-named brands with the same symbol or logo, and if it is not copyrighted or trademarked, the big brands cannot legally sue the knock-off company. As an alternative, many companies will send cease and desist letters to nicely threaten the knock-off company to take their look-alike products off the market.

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