- IP Strategies -
How Does the Fashion Industry Protect Its Designs?
US apparel market is huge, valued in the hundreds of billions of dollars. So, let's talk about how you, a designer, whether for high end dresses, graphical t shirts, hats or sunglasses can protect your intellectual property.
If we have not yet met, my name is Raymond Wagenknecht. I've been helping growing-businesses protect their intellectual property for over 15 years. As an IP attorney, and a pretty fashionable guy, I think the fashion and clothing industry provides interesting examples of the different forms of intellectual property, how they work together and the limitations of each.
Copyright protection is available when the artistic expression of the design is separable from the underlying article. Whether the design is separable can be determined by asking whether the design, if applied to a secondary medium like a canvas, would qualify as a work of art without replicating the article itself.
People tell me this is quite a jacket, and I have a feeling it's not because of the cut of the jacket, it has quite a bit of ornamentation. Here - and I have lots of zippers. They are not functional, there are no pockets here, but some of the zippers are functional. This one will take the sleeves off to make the sweetest vest you've ever seen. Parts that are separable from the underlying article can be considered for copyright protection. However, parts of the design having a utilitarian function can be difficult to register for copyright protection.
If the new design does affect the underlying article, like a new cut or shape, the designer might want to consider applying for a design patent. Design patents protect the visual and ornamental characteristics applied to or embedded on an article. This typically includes shape and surface ornamentation. In other words, design patents protect the appearance of the article itself.
Unlike copyright law, where the artistic expression is separable from the underlying article, under design patent protection, the patent protection is to the surface ornamentation on a specific article; although, there are ways to broaden this a bit.
So, in this instance, a design patent might be available for the design of a jacket or vest having this ornamentation. Generally, I find design patents a pretty good idea in instances such as for new shoe designs or hats or sunglasses where it can be difficult to argue that the artistic expression is separable from the underlying article - like the shoe itself. However, the challenge with design patents is that they must go under examination to make sure they are new and not obvious. So, if we were to apply for a design patent on this vest or this jacket, the examiner would conduct a search the prior art to see if there is anything similar out there which would render this just an obvious variation of what's already known.
Sometimes a designer is immediately recognized by a particular feature across a product line, like those fancy red soled shoes. Well, the challenge with colors and color schemes is that they're not really protected under copyright law because color isn't an artistic expression. And the courts have held that design patent rights cannot rest on colors alone, because they don't produce any new or unexpected appearance.
Conventionally we think of trademarks as protecting brand names and logos, but even colors, like Tiffany blue for jewelry, or red soles on shoes can function as a trademark. The challenge in protecting these features as a trademark is that the public must associate them with you, and therefore, it usually takes time for this to occur.
So, if your design is used across a product line and distinguishes your products from others, trademark protection might be available.
I know this has been a lot of information, and there are quite a few nuances between the different forms of intellectual property protection available to designers. So, let's go over a quick take home recap. First, copyright protection is available to protect the artistic expression that is separable from the underlying article. Design patent protection is available to protect the shape and surface ornamentation as it is applied to the article. Trademark protection might be available if the public associates the design with you as the source. And of course, if your design is functional, like the gerbil vest, there might be more intellectual property available as well.
If you find this content useful or interesting, or if you'd like me to explore another aspect of protecting intellectual property, feel free to shoot me a message or leave me a comment. Otherwise, I will see you next time.