Law Office of Jason H. Rosenblum, PLLC

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How to Use Trademarks, Copyrights, and Patents to Protect Fashion Designs ** Attorney Advertising**

The world of fashion is a multi-billion-dollar industry that includes the sale of apparel and all related fashion accessories across the globe. Those who make a name for themselves in the fashion space often do so because of their unique and stylish designs that catch the eye of retailers, fashion influencers, and customers alike.
While innovation and unique style are what ultimately ignites the world of fashion, you might be surprised that the creativity behind the designs are not exactly protected by intellectual property rights the way you might expect.
The Purpose of Fashion
Have you ever noticed that when a trend takes off in the fashion world, imitations and knockoffs immediately follow? For example, you might walk through the mall and see common brands selling handbags that are almost identical to those created by the world’s hottest designers.
This is possible because the courts have long held that clothing and fashion serve a utilitarian purpose, namely to cover us up and protect us from being naked and, therefore, cannot be copyrighted. If someone could copyright the way a pattern was stitched together or the concept of “pants,” it would limit people’s ability to create useful things that cover our bodies and keep us warm.
That doesn’t mean intellectual property rights do not exist when it comes to protecting one’s fashion concepts or designs. Here are some ways that fashion designers may still be able to protect their creative works.
Copyright Protection for Elements of Fashion
While clothing itself cannot be copyrighted, there may be elements of one’s design that can be protected under the law. The case of Brandir International, Inc. v. Cascade Pacific Lumber Co. found that “if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists.”
Essentially that means that if you can separate the design elements of a particular piece of fashion and those elements taken alone would qualify for copyright protection, it may be possible to copyright those independent pieces.
Likewise, unique sketches of fashion designs would be protected by copyright law, which would limit someone else’s ability to use your sketches or distribute them without your permission. This copyright protection would only extend to your sketch, however, and not the underlying concept of the fashion—which means someone else could still create clothing or merchandise that resembles your designs.
Patent Protection for Fashion
It may be possible to secure a design patent for a piece of clothing or accessory that would prevent others from using, making, or selling your unique concept without your permission. It wouldn’t protect the clothing per se, but rather the distinctiveness of the look of the novel ornamental design you invented. A utility patent may also be possible to secure if the design has unique functions, such as a new and innovative support sole for a shoe or a unique zipper. All this said, patents can take years to secure and may not provide the return that you are expecting for your investment. It’s best to run your ideas by a qualified attorney when determining if a patent is right for you.
Trademark Protection for Fashion
Many customers purchase apparel based on the designer or brand. The brand is protectible via trademark law which protects the source identifying marks of your goods.  This protection covers graphic designs, unique markings, logos imprinted on your clothing, and even textile clothing designs that can distinguish your clothing and apparel from your competitors’.
Copyrights, Trademarks, or Patents: Which Do I Need?
When it comes to legally protecting your fashion designs, it’s important to work closely with a qualified intellectual property attorney who can help you analyze the various elements of your work that may be entitled to copyright, trademark, or patent protection. For example, an element of design that you wanted to copyright may be better protected by filing for a patent and trademark instead. Your attorney can help you make such determinations to ensure that you are using your resources and time wisely as you work to launch your fashion and art into the marketplace.
If you need assistance getting started, we invite you to contact our copyright, patent, and trademark law firm. We help fashion designers across the United States and around the globe to secure their intellectual property rights. Simply call 888-666-0062 to schedule a consultation.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.