In our previous posts, we discussed how design patents may be used to provide intellectual property coverage for apparel, and we discussed some strategies for getting the most out of a design patent. Here we discuss how design patent protection can be extended across multiple product lines by obtaining design patents to the ornamental design of fabric.
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.
Apparel manufacturers are constantly struggling to defend against the costly threat of knock-offs. Currently, protection mechanisms in the United States for apparel include protecting distinctive logos or trade names with trademarks, protecting new and ornamental designs with design patents, and protecting the overall color, look, and packaging of a garment with trade dress. Despite these mechanisms, however, adequate protection against knock-offs is not always possible, and as a result, imposters are common. In light of a new Supreme Court case, though, apparel developers may be able to add one more tool to their arsenal for protecting their designs.