Yes, you can patent a clothing design in the US. A design patent protects the new, original, and ornamental look of a garment, shoe, or bag, and a utility patent protects a new way it works. However, most clothing never gets patented, because fashion moves faster than the paperwork.
This question sits right at the edge of science and art. In this post, I explain which protection covers which part of your clothes, how long it lasts, and what it means for small designers and dupes.
Disclosure: Contributed post.
What Kind of Patent Covers Clothing?
Let’s sort the two kinds of patents by the question they answer.
A design patent answers “What does it look like?” Under 35 U.S.C. § 171, it protects a new, original and ornamental design for an article of manufacture. For clothing, that means the shape of a jacket, the cut of a neckline, or the silhouette of a shoe as shown in the application’s drawings.
A utility patent answers “How does it work?” It covers functional inventions, for example a new fabric technology that moves sweat away from your skin, or a new fastening mechanism for a boot. The garment can look completely ordinary.
Of course, one garment can carry both. The USPTO design patent guide states that both patents may be obtained on one article if the invention resides in its utility and its ornamental appearance.
How Long Does a Design Patent Last?
For applications filed on or after May 13, 2015, a design patent lasts 15 years from the date of grant (35 U.S.C. § 173). Unlike utility patents, design patents require no maintenance fees.
Timing matters, too. In the US, you have a one-year grace period after your own public disclosure (35 U.S.C. § 102(b)(1)). Therefore, the day you post a new design on Instagram or sell it at a craft fair, the clock starts ticking. Many other countries protect the look of a product as an industrial design, and their rules differ.
Can You Copyright Clothing Designs?
Only partly. US copyright law treats clothing as a “useful article” because it covers and warms the body. Consequently, the cut and shape of a dress have no copyright protection.
However, in Star Athletica v. Varsity Brands (2017), the Supreme Court held that an artistic feature of a useful article is protectable if you can perceive it as a work of art separate from the article, and if it would qualify for protection on its own. The case involved lines, chevrons, and colorful shapes on cheerleading uniforms. In practice, an original fabric print can be copyrighted, while the garment’s shape and cut stay free to copy.
Can You Trademark a Clothing Design?
Sometimes. A trademark protects a sign that tells shoppers who made the product: a name, a logo, and in rare cases a color or a product design. The key legal term is secondary meaning, which means shoppers already link the look to one brand.
The famous example is the red sole. In Louboutin v. YSL (2d Cir. 2012), the court accepted the lacquered red outsole that contrasts with the upper as protectable because shoppers recognized it as Louboutin. The protection did not extend to every red shoe, so YSL could still sell its all-red shoe. This explainer walks thru when the look of a garment becomes protectable in more detail.
For product designs, the Supreme Court held in Wal-Mart v. Samara Brothers (2000), a case about children’s seersucker outfits, that a design always needs secondary meaning before it gets this protection. As a result, a new designer rarely has it on day one.
Is a Design Patent Worth It for Small Designers?
It depends on how long you plan to sell the piece. An application needs formal drawings and goes through examination, which costs time and money. Fashion trends, however, often change every season. Therefore, a design patent makes the most sense for a signature piece you plan to sell for years, like a bag shape or a clever functional detail.
What About Dupes?
Dupes copy the look of a designer piece without the logo. In the US, copying a garment design that has no patent, copyright, or trademark protection is generally legal. A dupe crosses the line when it copies a registered trademark, a copyrighted print, or a patented design.
FAQ on Patents in Fashion
Can you patent a design?
Yes. A US design patent protects the ornamental appearance of a manufactured article, including clothing, shoes, bags, and jewelry, if the design is new and original.
Can you copyright clothing designs?
Only the separable artistic parts, such as an original print. The cut and shape count as useful.
Can you trademark a design?
Yes, once shoppers recognize the design as coming from one brand.
What are clothing patents?
Design patents for how a garment looks and utility patents for how it works.
Can you get a patent on colors?
Yes, under certain conditions brands can have patented palettes.
References
35 U.S.C. §§ 102, 171, 173.
Louboutin v. Yves Saint Laurent, 696 F.3d 206 (2d Cir. 2012).
Star Athletica v. Varsity Brands, 580 U.S. 405 (2017).
Wal-Mart v. Samara Brothers, 529 U.S. 205 (2000).
Featured photo source: depositphotos.com
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