Clothing is often purchased just because of its unique design and look. Designers find new combinations of clothing elements each season, doing something slightly different than other designers. Design patents protect any innovative three-dimensional product that is not entirely functional and has some ornamental aspect to its contours, surface design and configuration. A design patent gives the owner the right to prevent copying of the patented design for 14 years. With short fashion cycles, this period provides effective protection for fashion houses.
Trademarks play an important role in protecting a designer’s brand. Design patents bolster this protection by protecting unique and identifiable design elements from being usurped and copied by competitors. Relying on trade dress protection is impractical since the designs can be copied before they have enough time to acquire secondary meaning where the consumer associates the design element with a particular designer as its source.
Design patents offer a powerful enforcement tool against copyists. In determining potential infringement, the courts use the ordinary observer test. Any article of manufacture design that could be confused with the patented design by an ordinary observer, not just exact copies, cannot be made, used, sold or offered for sale in the U.S. by others while the patent is valid and enforceable. This offers broader protection than copyright law where only exact duplicates are prohibited.
Strategy is important in the overall protection plan. A combination of trademark, trade dress, copyright and design patent protection are often needed for the best offense against misappropriation of a designer’s creative talent and reputation. A designer will not likely benefit from a design patent on every item in a product line, but should seriously consider protecting its iconic or high volume sales items. The cost is likely to be less than $6,000 for a design feature.
There are certain challenges when protecting clothing designs. Proportions present a challenge. A size 5 dress has different proportions than a size 18 dress of the same design. The patent can be directed to the basic design concept, not the exact product the designer sells. An experienced patent draftsman addresses this issue by limiting the claimed design to the combination of elements that make the design distinctive, not the entire piece of clothing which would include the size relationships of the elements.
Another strategy is to file a series or family of design patents, each claiming different design elements such as color, texture, surface finish, opaqueness, and any other visual effect.
Why take the step to get a design patent? A designer can develop a reputation of intolerance to copying, deterring competitors from knocking off its designs and making competitors more likely to copy the unprotected designs of others.