If you’ve just finished working on a new line of clothing, you’re probably wondering whether you can protect it with a patent? The USPTO (United States Patent and Trademark Office) issues design patents that protect the aesthetics or ornamental appearance of an object and utility patents that protect the functional aspects of an article of clothing. So, can a patent protect your clothing? Read below to find out.
Can You Patent Clothing?
The short answer is yes, you can patent clothing using a design patent or utility patent. That said, you should know the difference between what type of clothing design patents protect and design patents protect.
Patenting your clothing will allow you to restrict others from using, making, selling, and importing the patented clothing to the United States without your express permission.
You’ll have the exclusive right to make and sell your clothing line, you will also be able to license the design or the invention of your clothing to third parties in exchange for a licensing fee. Also, if you wish, you can sell the patented design to another party.
If the piece of clothing or apparel that you want to protect has a new, functional aspect, you can file a utility patent application. Utility patents protect functional items, including clothing that has a new and unique function.
For example, Katerina Plew sued Victoria’s Secret for infringing upon her patent of the “Very Sexy 100-Way Strapless Bra.” The Bra that she had patented was functional in that it was adjustable in 100 different ways. If you have an item of clothing that has a unique function as does the bra in this case, you might be able to protect it using a utility patent.
That said, even if you do not have a function piece of clothing, you’re not out of luck just yet. The USPTO offers design patents, which can be granted to protect the unique design or appearance of a new and unique item of clothing. Design patents, unlike utility patents, do not protect the function of an item but rather its design or appearance. We will now discuss how a design patent can be used to protect an article of clothing.
Protecting Clothing with a Design Patent
If your clothing does not qualify for a utility patent you might still be able to protect the design using a design patent. Many designers (inventors in this case) have protected their clothing by using a design patent. For example, if you have an item of clothing that has a new cut, pattern, design, or embroidery, you may be able to protect them using a design patent.
That said, if you want to protect your clothing using a design patent, you will have to meet the following requirements:
- The item of clothing must be new and unique,
- It must not affect the function of the article of clothing,
- It must be inseparable from the article to which it is attached, and
- The same or similar design must have not been previously patented
If you are able to satisfy the following requirements, you can hire an attorney to prepare and file a design patent application on your behalf. Just make sure that you file the application within one year of publicly disclosing the item of clothing, selling it, or offering it for sale. This is so because the USPTO requires that you file your design patent application within the 1 year grace period after publicly disclosing your design.
Protecting One Clothing Design Per Patent
Please remember that you can only protect (claim) one design per design patent application, therefore if you have multiple articles of clothing that you want to protect, you will have to file a separate design patent application for each article of clothing.
That said, the USPTO does allow inventors (designers) to protect multiple embodiments (variations) of the same design, it’s not recommended that you apply to protect different embodiments in your design patent application.
This is so because if the patent examiner determines that the different embodiments (variations) of the same design are distinct, you could face a scenario where the patent examiner forces you to only choose one design to be patented. This will cost you time and money because your attorney will have to do a lot of legal work to overcome this situation.
Filing a design patent claiming one design without different variations is the best way to guarantee the approval of your design patent application. Design patents are typically quick to get, especially if your attorney does a good job preparing your design patent application.
Once you’re successful in patenting your design, your patent will last for 15 years from the date the patent office grants your design patent application. During the 15-year patent term you will be able to stop others from using, making, selling, offering to sell, and importing an article of clothing that has a design that’s the same as or similar to the one that you’ve patented. Said differently, you will be able to stop others from copying your design and passing it off as their own.
Problems with Protecting Clothing with a Patent
Now that we have covered how you can protect an article of clothing using either a utility patent or design patent, it’s important to understand the shortcomings associated with patent law protecting clothing.
The Time it Takes to Patent Clothing
It often takes the USPTO 20 months to approve or deny a design patent application and this is simply too slow in the fashion industry where trends tend to move fairly quickly. Often times, the design that’s sought to be patented is already out of fashion by the time the patent office issues the design patent. The USPTO does offer an expedited means of obtaining a design patent, but even then it takes 10 to 12 months to get a design patent approved.
Cost Associated with Clothing Patent
Although many makers of unique clothing designs will benefit from patenting their new designs, it is often cost-prohibitive for some people. If you want to patent an article of clothing with a unique design, expect to pay the following fees:
- $50 to $200 Filing fee
- $40 to $160 Design search fee
- $150 to $600 Design patent examination fee
- $1,500 to $3,500 Attorney fees
If you’re an individual designer, you should expect to pay between $1,740 to $3,980 for an attorney to prepare and file your design patent application for an article of clothing with a unique design. The cost significantly depends on the attorneys’ fees that you will pay for them to prepare and file your application.
When do Patents on Clothing Make Sense?
Clothing patents make sense for designs that will last for long periods of time and for companies and individuals who have the financial backing to afford the preparation and filing of a design patent. For example, patenting a clothing design is appropriate for a brand such as Louis Vuitton. They have the time and money to spend on obtaining a design patent and their products sell for very high prices, this warrants spending and protecting the designs.
That said, if you believe that you have a unique design that warrants obtaining a design or utility patent, go for it. Just know that it could take a long time and you will have to spend copious amounts of money obtaining the patent.
Can Clothes Be Protected by Means Other Than a Patent?
According to Lexis Nexis, the Designs on clothing can be protected by U.S Copyright Law, however, there are some limitations to the protection that copyright law offers. For example, copyright protection does not extend to colors, so if the design you’re seeking to protect has a unique color the color would not be protected.
If you have sketches of the design that you want to protect, copyright law would protect the sketches and no one would be allowed to use, copy, or publicly display any of your sketches of an article of clothing.
If you want to protect the cut of an article of clothing, the Supreme Court does not allow such protection because copyright law cannot prohibit others from manufacturing an article of clothing with a cut that’s similar to the one you’ve invented.
That said, copyright law does offer protection for the designs on the surface of clothing just as it protects designs or art that are made on a sheet of paper. So, if you’re asking whether copyright law protects designs? It does if they are on the surface of an article of clothing. So, if you have a combination or arrangement of shapes, colors, and lines that appear on the surface of a piece of clothing, copyright law will protect these designs.
How Do You Patent a Clothing Design?
If you want to patent a clothing design, you’ll have to make sure that you have a design that’s new and unique and that the article of clothing holding the design qualifies for a patent. You should then contact an attorney who can determine whether your design qualifies for a patent. If he gives you the good news that it does, you can then have them prepare and file a design patent application or utility patent application on your behalf.
Just remember that patents can cost quite a lot of money and require time, so if you have both and you’re confident that you can commercialize the clothing brand, go ahead and get the process started.
This article discussed the various options that a designer or inventor has to obtain patent protection on clothing. We also examined the difference in protecting clothing with a patent vs copyright. We discussed the requirements that must be followed for an inventor or designer to protect an article of clothing in the United States. We also discussed when obtaining a patent on clothing makes sense and the costs associated with patenting clothing. If you have any general questions or comments please feel free to leave them in the comments section below.