Protecting fashion with design patents

In the fashion world, looks matter. Design patents are all about protecting unique ornamental appearances, so it makes sense for the fashion industry to consider this type of IP before launching new lines. Keep in mind that US design patents have specific requirements that may differ from design laws of other countries. Let’s dive into how US design patents can help protect fashion and clothing products.

Design patents make sense for short lifespan products

Products that have a shorter shelf life (e.g., 3-6 years) will benefit from the earlier grant of design patents. Unlike utility patent applications which can take several years and involve multiple rejections, a design patent can get granted within 21 months on average. US design patent applications currently enjoy an approximate success rate of 85%. If an Office Action is issued in a design application, the objections typically relate to indefinite drawings which can be corrected with replacement drawings.

The length of a design patent is 15 years from the grant date, which should last long enough to cover a wide multitude of trendy consumer goods.

Can function be protected by design patents?

No, functional features are not protected by design patents. That being said, certain product features can be simultaneously ornamental and functional. This ambiguity can create an opportunity for design patent protection.

What types of fashion and designer products would be appropriate for design patent protection?

Design patents would make sense for:

  • handbags
  • shoes and footwear
  • jewelry
  • hair accessories
  • home decorations / decorative accessories

3-Dimensional Structure vs. 2-Dimensional Artwork

Design patents in the US may cover 3D structures and two-dimensional images as applied to articles of manufacture (e.g., physical products). When applying for a two-dimensional image, it may help to show in broken lines (dashed lines) the object on which the image is displayed. Broken lines provide environmental context without claiming that environment as part of the design.

Keep in mind, however, that a design patent must always specify an article of manufacture. For example, if a pattern for a chair is claimed, such a design patent would not cover a similar pattern used on baskets. In other words, the claimed design must appear on the goods as specified in the design patent.

Does it make sense to cover a fashion product with design and utility patent applications?

Where the novelty of a fashion product includes both functional and ornamental features, it may make sense to apply for both design and utility patents. Such a dual approach will certainly involve strategy and planning, especially in drawing the line between appearance and function.

How to patent a fashion or clothing line

Unlike utility patents which require extensive written descriptions, the most important component of a design patent application is the visual image. You will want to provide visuals that will help the patent illustrator prepare black-and-white line drawings that meet the USPTO strict standards for design drawings. We recommend sending any available electronic drawing files (e.g., CAD files) that will enable a a patent illustrator to render formal design drawings more efficiently. This saves time and costs in the preparation of design patent figures.

What is the biggest patent mistake made by fashion and clothing designers?

The biggest mistake made by designers in relation to IP is waiting too long. Timing is critical in patenting designs. Most foreign countries preclude patent protection for any designs that were publicly disclosed before applying for a patent.

US patent laws provide a 1-year grace period. That means that if you wait beyond one year from the earliest date that you first launched a clothing line, it will be too late to secure a US patent. If you’re still within 12 months of your earliest public disclosure, any previously disclosed designs may still be eligible for patent protection. But, don’t forget it’s a race to the Patent Office under the first-to-file rule.

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Vic Lin

Vic Lin

Startup Patent Attorney | IP Lead Partner at Innovation Capital Law Group
If you are a startup or small business, we want to help. Our mission is to equip entrepreneurs with solid IP rights that facilitate funding, growth and sales. Let's get to work! Direct: 949.223.9623 | Email: vlin@icaplaw.com
Vic Lin

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