If you are designer you likely know the story. The fashion industry in the US alone is a 300 billion dollar revenue generator, with designers at the core creating work that is functional, and sometimes unique, new beautiful art. Yet, the legal protections for designers are notoriously slim, and it has become commonplace to surrender and accept that your work will be copied – or give up and not do it at all. However, despite the fact that there is no uniform law (yet) to protect fashion designs, there are a variety of intellectual property tools available that can add some protection. Brand names and logos can be protected with trademarks, and trade dress (a form of trademark) can protect certain very distinctive aspects of products (think Louboutin’s red soles). Fabric prints and patterns can be protected with copyright, but not fashion designs – because they are functional items. This has led many to think that fashion designs themselves are totally vulnerable – but help may be out there. No, I’m not talking about shaming after the fact … when the business damage may already be done.
I have been helping clients protect their work with design patents – and think they may be the most overlooked and underutilized form of protection available. When people think of a patent they are usually thinking about a utility patent. These protect new, non-obvious inventions for how they work, and they are rarely granted for fashion designs. Furthermore, the process is long, complicated and wildly expensive. But there is another kind of patent that protects the look of a design, or ornamentation, as long as it is novel, nonfunctional and non-obvious to a designer of ordinary skill in the art. These can be especially useful with shoes, bags and accessories but can be used with apparel designs (or certain aspects of apparel designs) as well. Check out a recent one from Stella McCartney below.
A design patent is faster, cheaper and easier to obtain than a utility patent and may be worth looking into to protect your work. It may also can give you a nice marketing and sales boost almost right away to say that you have a “patent pending” on your design. However, patent law is still a very complicated field and there is no way to explain it all in a post such as this. I encourage you to ask your attorney about it – or feel free to reach out to me for a (free) consultation at Brad@LordBertram.com.
Enjoy your work .. and protect your product!