Disrupting the fashion calendar and sweeping menswear collections on to the same runway as womenswear is certainly trending. But there is another, arguably (much) more important, practice at play in fashion: Brands stocking up on design patents to ward off the rampant copying that comes hand in hand with the rise of fast fashion brands and affordable luxury brands, alike. In the past several months alone, Yves Saint Laurent has been granted eight design patents by the U.S. Patent and Trademark Office (“USPTO”). Louis Vuitton has added roughly 6 design patents to its roster. Bottega Veneta has been granted three. Balenciaga, two.
This is certainly not a new tactic, as brands have been utilizing design patent protection for decades, but others have begun to follow suit, relying significantly on this form of protection, which extends to the “new, original, and ornamental design for an article of manufacture.” In short: the appearance of a functional item, such as a purse or shoe. Because neither trademark nor copyright law tends to extend to garments and accessories in their entirety, copying is almost entirely legal in the U.S., save for the protection afforded by design patents. Hence, the increasing reliance on this form of protection, which provides the owner with the right to prevent others from making, using, or selling a product that so resembles the patented product that an "ordinary observer" might purchase the infringing article, thinking it was the patented product. Such protection lasts for between 14 and 15 years, depending on the date of filing.
Like trademark and copyright protection, though, patents come with their own downsides: namely, cost and turnaround time. Compared to trademark and copyright protection, which cost less than $500 to register, patents are costly; recently reports suggest a patent (and the corresponding legal fees) will cost you upwards of $10,000. The turnaround time – or the pendency, the term that refers to the time taken between the filing and issuance of the design patent – tends to be about 18 months, with some taking quite a bit longer. While a year and a half is not a terribly long time, it is often too long to wait for most garments and accessories. Given the very seasonal and cyclical nature of the fashion industry, oftentimes a design will be “so last season,” so to speak, by the time a design patent is issued, thereby making it less likely that the design will be copied.
As such, we tend to see such protection sought only by brands for their staple items, and only by brands with thousands of dollars to spend on each single patent. While design patents generally tend to be far less commonly utilized in the fashion industry than other forms of intellectual property, namely, copyright and trademarks, they make sense for brands with significant accessory businesses, such as Bottega Veneta or Louis Vuitton. These brands not only have the resources to spend to protect their designs, but many of their accessories – whether it is a shoe or a purse – also tend to become brand staples, making a design patent a worthwhile investment. This is obviously distinct from a very season-specific top or dress, for instance, which houses tend to show for a single collection and never re-introduce in any significant manner.
While statistics are not available for fashion-related design patents alone, design patent filings as a whole have been increasing since the 1960’s. In the past several years, the number of design patent filings has been growing by at least 1,400 filings each year, with a particularly notable rise of 3,719 filings between 2014 and 2015.