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Protecting Fashion Designs with Design Patents

The United States does not afford Copyright protection to fashion designs themselves, unlike many other countries. Copyright protection could be obtained for particular graphic fabric designs, but not the cut or style of apparel. However, design patents can often fill in the gap. The downside of relying on design patents is that they are significantly more expensive to obtain than copyright registrations, particularly since each design patent can only contain a single patentable design.  However, many fashion brands have used design patents extensively to protect their portfolios.  Since large portions of the overall article can be disclaimed with broken lines, it is possible to obtain protection for certain features that are applied broadly over an entire fashion line.

One of the most prolific design patent filers is Nike, Inc.  Its portfolio contains hundreds if not thousands of designs patents on its athletic shoes alone.  Many of these patents protect individual design elements on an unclaimed shoe, so that the design element can be used on many different shoes.  For Example, US D871,050, Nike’s most recent design patent which issued on December 31, claims a shoe upper having a particular lace-holding structure thereon. The entire shoe is disclaimed, so that the lace holding structure itself is the only claimed feature.  This type of protection can be used on other articles, such as a shirt, which is shown in Nike’s USD812,859, which claims only a portion of the neckline, with the remainder of the shirt being disclaimed.

Besides shoes and shirts, many other fashion designs are protectable as well, such as handbags and jewelry.  USD 847,500 to Chanel, Inc. shows a handbag with a chain handle, designed by Karl Lagerfeld.  The particular clasp of a handbag is the subject of USD696,017, also to Chanel.  Gucci also owns many design patents, primarily related to handbags and watches.

Adidas is also the owner of a large design patent portfolio.  One design patent, USD 847,467, which relates to apparel, shows what looks like running tights, in which the only claimed feature is a line that wind helically around each leg.   Design patents can be a very effective way to protect certain elements in fashion design, and are often the designer’s only way (other than their trademarked names and logos) to prevent third parties from copying their designs in the United States.

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