Role Of Design Patents In The Fashion Industry

October 7, 2022
- Intellectual Property (IP)
- Patentability Search

Aesthetics, appearances, and looks matter in today’s world but nowhere are they as significant as in the fashion industry. The entire industry flourishes on these aspects and they form the pivotal point of anything related to fashion.
The widespread worry that designs will be stolen or copied exists in the midst of all the innovation and fixation with producing original ideas. In order to produce fresh designs for the season, the fashion industry invests enormous amounts of money, time, and resources each year.
Given the highly volatile nature of fashion, retaining ownership and protection from plagiarism is the focus of designers and businesses. So, can you patent a fashion design? The answer is yes, with the help of a design patent. Below we explore how fashion design patent help in safeguarding clothing lines and accessories of the fashion world.

What Are Design Patents?

The United States Patents and Trademark Office (USPTO) recognizes three types of patents– Design Patent, Plant Patent, and Utility Patent. Each varies according to the subject matter and content it panders to and the filing and application processes.

In the case of design patents, the subject matter is the design and not the article itself. The visual characteristics embodied in or applied to an article come under the purview of a design patent.

It strictly refers to the design for an article and not the design on an article. It is issued for ornamental configuration, surface decoration, or both. For example, the Christian Dior Couture patent for sunglasses or the Valentino tote bag from its “Rockstud” line. They were able to claim design patents because these items have distinct ornamental features and are not just functional items with low aesthetic value.

Eligibility for Design Patents

A patent clothing design must meet the following requirements to qualify for a design patent:

It must be novel.
It must satisfy ornamental standards, i.e., it must possess aesthetic skill and artistic conception.
It must be non-obvious.
It must have a single claim.

How to Patent a Fashion Design

Design patent applications are submitted to the U.S. Patent and Trademark Office (USPTO). They require black and white line drawings to be submitted along with the applications that clearly illustrate the design.
After a thorough examination which includes a prior art search, design patents are granted to the applicant for a period of 14 years. It gives the owner the right to prevent others from making, using, or selling the product without permission.
Design patents are easier to get compared to utility patents which have the highest rejection rates as compared to design patents which have a favorable approval rate of 85% in recent years.

Design Patents And The Fashion Industry

Handbags, jewelry, hair accessories, footwear, and decorative accessories are some areas where design patents can be secured. A design patent must always mention the article which carries the design.
Fashion items that have a long-life span are best suited to apply for the design patent. It is important to reiterate here that design patents only cover the way an article looks and not its functional value. This makes them particularly apt for the fashion industry.
Consider the Hermès signature “Kelly Bag” that was first popularised by Princess Grace Kelly of Monaco and continues to be sold to date. Or the classic Chanel suit that made its first appearance in the 1930s and is still a modern classic.
There are several burgeoning examples of clothing patents in the fashion industry that have helped creators maintain the sanctity of their designs and profit from them.
The UK and EU offer unregistered design protection to designers for their products. This protection lasts for a shorter span of time (3 years) but reduces any financial burden on the designers as the clothing patent cost is minimal.

Why Designers Are Overlooking The Design Patent And How That’s A Mistake!

Is a patent required to start a clothes line? Few designers understand the possibility and benefits that a design patent bestows, despite the obvious benefits of design patents. There are numerous causes for this inhibition, including:

The cost of securing a design patent in the US
The long wait for a patent
A long validity period that may not be useful in the fashion industry.

All the above dissents stem from a myopic view of the utility of these patents. Firstly, the initial cost of securing the clothing patent may be far outweighed by the cost of losing the design to plagiarism. The question should not be how much it costs to patent a clothing line but the lost profits if it is not patented.
Secondly, the long wait period of design patents applies to patents across various industries. The average 15-month period may be much shorter for design patents pertaining to the fashion industry as these designs tend to be simpler.
Further, one can apply for the patent at the sketching stage, and it will be granted by the time the product is final and ready to hit the stores. There is also the option of expediting patents which can further bring down the waiting period.
Thirdly, the fourteen months validity is an asset given the cyclical nature of fashion which always repeats itself at regular intervals. Moreover, some designs are classics that will never go out of vogue, a case in point being the Hush Puppies patented design that has lasted for years. So, there are more pros to protecting the design rather than letting it go!

Mistakes To Avoid When Applying For Design Patents

Listed here are some common mistakes that occur when filing for a design patent:
Inadequate patentability search.
Skipping the specifics.
Not adhering to the strict drawing requirements enlisted by the USPTO.
Waiting too long to file the patent
Claiming the product as sold, rather than claiming the design.

Avoiding these general mistakes can increase your chances of securing a patent and quicken the entire process.

Conclusion

As the above discussion clearly proves, design patents are an under-utilized but potent tool for the fashion industry. A patent clothing brand can be instrumental in safeguarding one’s designs to benefit commercially from them. Considering the complex application process and the strict documentation required, it is best to hire the expert services of a reputed firm to help you glide through the procedure.

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