It is a well-appreciated fact that protecting apparel intellectual property is a challenge, and many clothing designers and manufacturers are all too familiar with seeing knock-offs of their designs. While there is no magic bullet for protecting apparel designs, a multi-pronged approach that includes trademark, copyright, and patent protection may provide clothing designers with an arsenal of tools with which to protect their designs. One such avenue of apparel design protection is a design patent. Design patents protect the way an article looks, and thus include the visual ornamental characteristics of an article of manufacture. Design patents may be used to secure protection for a variety of ornamental designs, including stitching, fabric patterns, silhouettes, and more.
For example, U.S. Design Patent No. 547530 is directed to an ornamental stitch pattern applied to pants. As shown by Figs. 1 and 2 of the patent, reproduced below, the stitch pattern on the front and back pockets as well as some of the hems of the pants are claimed as part of the ornamental design (indicated by the solid lines), while other aspects of the pants (such as the shape of the pants themselves) are not claimed (indicated by the broken lines). This approach may allow for variations in the design of the pants to which the stitching is applied, which may broaden the coverage of the design patent. For example, the stitching pattern may be protected if it is applied to a pair of skinny jeans as well as if the stitching pattern is applied to a pair of boot-cut pants.
Despite the usefulness of design patents, many areas of design may not be a perfect fit for design patents. For example, a quick search of the U.S. Patent and Trademark Office’s database shows that fewer than 600 design patents have been granted for ornamental designs related to pants or jeans. While design patents may present some hurdles that make securing design patent coverage less appealing for clothing designers (which we will discuss in a later post), the space in design patents for certain types of apparel is relatively open, which may facilitate securing a design patent for your design and give you a leg up on your competition.