Key Takeaways:

  • Clothing patents primarily fall under design patents, which protect the visual appearance of fashion items.
  • Functional elements in clothing may qualify for utility patents.
  • Trademark law remains a crucial avenue for brand identity protection in fashion.
  • Design patents are gaining popularity as a strategy against fast fashion knockoffs.
  • The patent process requires the design to be novel, non-obvious, and ornamental.
  • The “first to file” rule makes early application critical.
  • Fashion IP strategies often combine design patents, trademarks, and copyrights.
  • Legal action options include cease and desist letters, litigation, or ITC complaints.
  • A knowledgeable attorney can help tailor an IP protection plan to a fashion brand's needs.

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.

Design Patents in Fashion

Design patents are especially relevant to fashion designers looking to protect the ornamental aspects of clothing, such as specific cuts, stitching patterns, fabric combinations, or embellishments. Unlike utility patents, which cover functional innovations, design patents apply only to the aesthetic, non-functional aspects.

To obtain a design patent, the design must meet three key criteria:

  1. Novelty – It must be new and original.
  2. Non-obviousness – It cannot be an obvious modification of existing designs.
  3. Ornamentality – It must pertain to the appearance rather than functionality.

Design patents last for 15 years from the date of grant and are ideal for products that have a longer shelf life or are signature pieces of a collection. While fast-changing seasonal items may not justify the cost, flagship products or repeated staples may benefit from this protection.

With increasing litigation over knockoffs and counterfeit fashion goods, more designers are turning to design patents to secure their intellectual property rights.

Utility Patents for Functional Clothing

When clothing includes innovative or technical functionality—such as moisture-wicking fabrics, adjustable fit mechanisms, or embedded sensors—it may qualify for a utility patent.

Utility patents protect how a product works or is used. In fashion, this may include:

  • Fastening mechanisms (e.g., magnetic closures)
  • Wearable tech (e.g., jackets with built-in heating)
  • Athletic wear innovations (e.g., compression zones)

Utility patents typically last for 20 years from the date of filing, but the application process is more rigorous than for design patents. They require detailed descriptions, claims, and sometimes prototypes or testing data.

Securing a utility patent can offer strong protection, especially if your clothing product offers a unique functional advantage over competitors.

The Importance of Filing Early

The United States follows a “first to file” patent system, meaning the first person to file a patent application—rather than the first to invent—gains the rights to the invention or design. Therefore, if a fashion designer creates a novel garment or accessory, it’s vital to file a patent application before public disclosure, sale, or social media promotion.

Failing to file early could allow others to file first or prevent patentability due to prior public disclosure.

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.

Trade Dress and Nontraditional Marks in Fashion

Trade dress refers to the overall look and feel of a product that signifies its source. In fashion, this could include:

  • The distinctive shape of a shoe (e.g., Christian Louboutin’s red soles)
  • Unique patterns or stitching arrangements
  • Store layouts or product packaging

For trade dress to be protectable, it must be:

  1. Inherently distinctive or have acquired distinctiveness.
  2. Non-functional, i.e., the feature cannot be essential to the product's use or purpose.

Additionally, nontraditional trademarks—such as sounds, textures, or colors—are becoming more recognized. For example, Tiffany & Co. trademarked its distinctive shade of blue for packaging.

These strategies enhance a brand’s ability to protect key visual elements beyond traditional logos or brand names.

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.

Steps to Patent a Clothing Design

If you're pursuing a design patent for your clothing, the process generally includes the following steps:

  1. Document your design – Include high-quality images or drawings.
  2. Conduct a patent search – Ensure your design is unique.
  3. Work with a patent attorney – Especially for preparing application drawings and descriptions.
  4. File with the USPTO – The application should include detailed views and descriptions of the design.
  5. Respond to any office actions – Address feedback or rejections from the patent examiner.

Working with an experienced IP attorney can improve your chances of approval and help navigate potential pitfalls in the application process. You can find knowledgeable legal professionals through UpCounsel to assist with clothing patents and related issues.

Combining IP Protections for Stronger Coverage

Because fashion items often blur the line between form and function, successful protection strategies frequently involve a combination of IP rights:

  • Design Patents for the appearance of unique fashion items.
  • Utility Patents for any new functional aspects.
  • Trademarks for brand logos and product identifiers.
  • Copyrights for certain fabric prints or artistic expressions.

This layered approach maximizes protection and deters infringement. For instance, a sportswear company may patent a moisture-wicking system (utility), register the shape of the shoe sole (design patent), and protect the brand name and logo (trademark).

FAQ Section

Frequently Asked Questions

1. Can I patent an entire clothing line? No, patents are granted for individual designs or inventions. You would need to file separately for each design you wish to protect.

2. How do I know if my clothing design qualifies for a patent? To qualify, the design must be new, non-obvious, and ornamental. A patent attorney can help assess eligibility.

3. What’s the difference between a design patent and a utility patent in fashion? Design patents protect the look of a product; utility patents protect how it functions.

4. Is it worth patenting fast fashion pieces? Usually not, due to time and cost. Patents are more suited for long-lasting or signature designs.

5. How long does it take to get a design patent? The process typically takes 12 to 18 months, but can vary depending on USPTO backlog and any office actions.

If you need help with anything related to fashion 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.