Fashion Law 101: Design Patents
Design Patents are a rare form of intellectual property in the fashion industry. A few companies like, Not Your Daughters Jeans, Under Armour and even Gwyneth Shoes (which recently sued Paris Hilton) has one, but these are the exceptions and not the rule. What is a Design Patent and why are the so uncommon in fashion?
The U.S. Patent Office states, "Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture." If successfully filed and prosecuted, a process which averages 18-30 months, you will have ownership of the design for 14 years. To succeed in registering a patent, you must show that the proposed design is novel (i.e., no one else has previously designed a product like this).
Design Patents are uncommon in the fashion industry for two main reasons:
- A Design Patent can be expensive for a Fashion Company. The cost of a Design Patent averages $2500-5000, depending on the challenges raised by the patent office, not including maintenance fees. Fashion Designers make many items a season, and it is next to impossible to predict which will be your best seller. To protect your entire line, every season, can get costly, especially for an emerging designer.
- A Design Patent takes a long time to get. Fashion cycles move quickly. So, by the time your patent issues, the item you protected is likely obsolete. Thus, you spent a whole bunch of money for nothing.
In my experience, there are only a few instances where Design Patents make sense, mainly in shoe accessories. If money is not an obstacle, you could always try and register, if a search reveals that your idea is new and novel. That way, you could list "patent pending" on your invention, deterring knock-offs while the patent office examines your idea. That extra jump in the market may be enough to brand you as the innovator and translate into extra sales. That's not bad bang for your buck.
photo credit: Cychanglaw.com
Could be why there's a bill in every congress to allow for copyrights for designs....sigh...it will never happen. Hell, we can't even get patent reform through and we've been lobbying for it for over 4 years. Congress isn't very receptive to IP rights.