Patents for clothing and fashion patents are common inquiries at my law firm.  Clothing and fashion technically can qualify for design patent protection.  Often, however, designers from the international to the local levels often don’t opt to get patent protections for their designs.  Why?

For one, patent protection is a long and expensive process.  When a clothing line is meant to change from season to season, by the time a patent is granted, the clothing line has already been replaced by new designs.

For another, design patents only protect the ornamental, non-functional aspect of an invention.  Thus, features that make apparel practical, like pockets, for example, have a functional purpose, and are therefore not eligible for design patent protection.  For this reason, design patent litigation relating to fashion is very uncommon.

Recently, though, Lululemon has been in the legal spotlight for securing design patents for their clothing.  Some experts think that Lululemon is stockpiling patents as a deterrent to people selling knock-offs, with no intent to litigate.  The concern is, however, that this strategy is not the intent of the law, and it essentially amounts to an “intellectual property cold war.”

Why do these experts hold this belief?  Design patents are interpreted by courts quite literally.  In the world of apparel, an infringer has to copy the genuine article almost exactly; otherwise, a plaintiff like Lululemon has a very high likelihood of losing a costly court battle.

Because of this rule, designers often just opt for trademark protection; that is, protecting their name or logo that can appear on every item of clothing without having to keep seeking protection of every individual item of clothing.  Many of our clothing designer clients have thus opted for this option.  Our firm can help you decide whether trademark or patent protection is right for your intellectual property.

Filed under: Patents by Yau Jo-Anne Sunday, January 27th, 2013