In our previous post, we discussed how design patents may be used to provide intellectual property coverage for apparel. As mentioned, design patents may provide important coverage for clothing designs, but design patents also pose challenges that may make them less appealing for certain clothing designers. In particular, compared to trademark and copyright protection, design patents are relatively expensive to secure and the time delay from filing to grant of a design patent may be lengthy (six months at the minimum, but sometimes upwards of two years). Given consumer desire for “fast fashion,” this season’s hot new clothing design could be irrelevant by the time a design patent is granted, thus minimizing the benefits of the design patent. While there are ways to speed up design patent grants, this adds still further expense.
Outdoor and fitness apparel may be more immune to changing fashion trends, and thus design patents on the ornamental design of ski jackets, yoga pants, bicycle shorts, hiking shoes, and the like may provide valuable patent protection. But what to do if your clothing design changes each season? One approach is to identify any design features that you predict may become synonymous with your designs, or any design features that may be applicable to multiple types of apparel, even as aspects of the apparel change. Design cues that are carried through multiple products or multiple product lines or generations are one such aspect. Design patents on those design features may then be obtained, which may extend the usefulness of the design patents. For example, consider obtaining a patent for the silhouette of an article of clothing rather than to specific aspects of the article that may change, such as any embroidery or other ornamental features.
An example design patent for a coat (USD708424) is illustrated below. As seen below, the patent claims the outer silhouette of the coat as well as a few design features (e.g., pocket placement) but does not claim any patterns, embroidery, or other design features. Thus, this patent may be applicable to multiple different coat designs. Likewise, design patent USD739995, also illustrated below, includes a very simple claim to a dress silhouette. As these patents illustrate, even basic design features may be covered with a design patent, extending the applicability and thus value of such patents.