In an age of "knock-offs," patent protection is an avenue that can be used by the fashion and apparel industry to protect products. Every week, the United States Patent and Trademark Office grants dozens of patents on a diverse range of apparel and fashion accessories (for example, shoes, hats, handbags and clothing among other items). Most of these patents are "design patents." Under United States Patent Law, there are two broad categories of patents: "utility patents," which protect the way an invention is used and works, and "design patents," which protect the ornamental appearance of a useful article.
Obtaining a design patent is generally a far easier process than obtaining a utility patent. An application, typically prepared by a patent attorney, is filed with the United States Patent and Trademark Office. The application is examined by the Patent Office for novelty (has someone else done the exact same design before) and obviousness (is the new design so similar to a prior design that it would be an obvious modification) and if, as most, it passes scrutiny, the patent issues.
Infringement of a design patent is determined by the ordinary observer test. Infringement exists if the accused design is so similar to the patented design that an ordinary observer would purchase the accused design believing it to be the patented design. If infringement is found, the patent owner will likely be entitled to and injunction and either monetary damages or a recovery of the infringer’s profits.
Less frequently, utility patents are also granted in the fashion industry to protect the functional aspects of products. Common areas for utility patent protection in the fashion and accessories industries include useful improvements in brassieres, shoes, umbrellas and the like. The remedies for infringement of a utility patent are similar, but not identical to, a design patent.
Although creativity is deeply rooted in the fashion industry, many in the industry remain unaware of the benefits that they can derive through the patent system. Knock-offs of successful designs are a serious problem. Creators of new designs should consider filing for patent protection to curb rampant imitation.