Design Patent Protection for Fashion

| Peter LawJason J. Jardine

On May 12, 2020, the United States Patent and Trademark Office issued over 700 new design patents. Fashion-related designs figured prominently among the new patent grants including accessories like eyeglasses (see U.S. Design Patent Nos. D884,062-D884,067), jewelry, watches, and gemstones (D883,835-D883,852), or shoe-related designs (D883,617-D883,650). There were also design patent grants for “Utility glove” (D883,610), “Brassiere” (D883,611), “Garment” (D883,612), “Swaddle sack” (D883,613), “Bodysuit” (D883,614), “Shirred relaxed fit dress” (D883,615), and “Short kaftan with hardware” (D883,616).

Design patents protect the way an article looks or its ornamental appearance (rather than its utility, or the way the article works). The subject matter of a design patent application can cover the shape of the article, the surface ornamentation of the article, or a combination of the shape and the surface ornamentation.

In the United States, a design patent application includes only a single claim shown in drawings of the article. The claimed portion of the article is illustrated with solid lines. Broken lines can be used either to illustrate a part of the claimed design such as stitching or fold lines or to illustrate the environment in which the article embodying the design is used.

Because the term of a design patent is 15 years from the date of grant, and because preparing and filing a design patent application is relatively inexpensive when compared to a utility application, design patent applications are particularly useful in industries where the look or appearance of a products is important. As shown by the recent design patent grants mentioned above, design patents in the fashion industry can be useful for protecting clothing, shoes, jewelry or other accessories[1] from potential copying by unscrupulous competitors.

Editor: Catherine Holland

[1] Websites or graphical user interfaces or computer animation may also be eligible for design patent protection. See U.S. Design Patent Nos. D883992-D884029.