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Fashion and IP, Part Four: Design Patent

The final part of a four-part blog series on the intersection of fashion and intellectual property law, this post touches upon design patents and their role in the fashion industry. (Playing catch-up? Click for the previous posts on fashion and IP, namely, copyright, trade dress, and trademark/counterfeiting.)

What’s A Design Patent?

First, it’s important to understand the difference between copyright, trademark, and patent protection. (For an in-depth look at the difference between copyright and trademark, click here.) In the U.S., copyright law affords protection to creative works (your works of art, graphic design, musical works, architectural designs, etc.). Trademark law protects the name and/or symbol that represents your brand, and acts as a signifier to consumers that your goods or services come from a certain source and are of a certain quality. Patent protection gives exclusive rights to an invention for a limited time, and the patent itself details the science behind the invention (it’s the reason why patent attorneys usually have a background in science or engineering). There are two types of patents: utility patents and design patents. Utility patents are those patents that apply to inventions. Design patents protect an article’s design, so long as it’s nonfunctional (or non-utilitarian), new, and non-obvious to a designer of ordinary skill in the industry.

Design Patents and Fashion

Similar to the roadblock encountered by a designer that seeks copyright protection for his or her designs, patent protection is not often afforded to apparel, as clothing is considered to be functional (that is, it keeps us warm and protected from the elements). A design patent provides 14 years of protection, but those in the fashion industry may find design patent protection unworthy of the hassle — the process of obtaining a design patent usually takes over a year, which is longer than the life of the usual article of clothing or accessory, which are often seasonal. Still, it may be a worthwhile consideration for the zealous designers that plan ahead, particularly because the United States Patent and Trademark Office recently began offering a “rocket docket” (an option should you elect to pay a fee for expediting the application), which could result in registration in as few as six months.

And thus the four-part series on fashion and IP ends. Be sure to follow Spear IP on Facebook, Twitter, and Google + for updates and current events that may be of interest to the fashion industry and other industries.

Note: Spear IP does not currently provide legal services in the field of patent law.