Can fashion products be protected 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.
Need to protect your clothing articles with design patents? Contact US patent attorney Vic Lin at (949) 223-9623 or email vlin@icaplaw.com to explore how we can help you patent your fashion designs.
Can functional features 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.
For example, suppose you obtained a design patent for a shirt with specific functional and ornamental features. A competitor might be able to sell their own shirt with a different appearance. Moreover, they might be able to copy your functional feature by making their functional feature look different than yours.
Would design patents work for products with short lifespans?
Products that have a shorter shelf life (e.g., 3-8 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 may be granted within 21 months on average.
In recent years, US design patent applications have benefited from a high approval rate of over 80%. If an Office Action is issued in a design application, the objections typically relate to indefinite drawings which can be corrected with replacement drawings.
Design patents expire 15 years from the grant date. This term should last long enough to cover a wide multitude of consumer goods.
What types of fashion and designer products would be appropriate for design patent protection?
Design patents would make sense for:
- clothing articles
- 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.
Can you protect your fashion product with design and utility patents?
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.
The utility patent application would cover functional utilitarian features while your design patent application would cover the visual ornamental appearance of your product or certain components thereof.
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 providing any available electronic drawing files (e.g., CAD files) that will enable 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?
One of the biggest mistakes made by fashion designers is waiting too long to protect their IP. 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.
Need to protect your fashion products with design patents?
Contact US design patent attorney Vic Lin by email at vlin@icaplaw.com or call (949) 223-9623 to see how we can develop and execute a strategy to protect your fashion products with design patents.
