Patent Attorney and Founder
A clothing design patent isn’t a specific category. The United States Patent and Trademark Office requires the same criteria for all inventions seeking a patent, so there are no steps that are unique to clothing design. Working with an attorney is the best way to choose the right protection and complete the steps necessary to obtain it.
Of course, that’s assuming that a patent is the kind of IP protection you need. There are many other options out there that may be more pertinent to your needs. It’s a journey best embarked on with the help of an experienced attorney.
Do You Need a Clothing Design Patent?
A patent’s goal is to guarantee exclusive use of a design or function. That’s why patents are broken up into two categories: utility and design. Utility protects the way something works; design covers how it looks. Some products will require both types of patents.
The big question to ask yourself here is: do you need to patent your clothing line? Would exclusive use significantly benefit you, and do you meet the qualifications for it? Any invention that you seek a patent for, regardless of type, will have to meet four basic qualifications.
Criteria to Patent a Clothing Line
It is possible to patent a clothing line, but some specific criteria are necessary. Mainly, your clothing line has to meet all the standards of any other patentable idea:
- Novelty: The novel requirement means that your idea has to be unique from any other on the market. It also can’t be based on information that’s available to the public.
- Example: The Hypercolor trend seen in the 1990s featured a patented process that caused dye to react to body heat. This created the color-changing clothing that many of us remember as a fad. The creator, Generra, was successful in their bid for a patent because of the unique dye process they created.
- Usefulness: (Only a requirement for Utility Patents) The item you create has to be helpful in some way. There is a lot of leeway in this criteria. Mainly, you have to show that it solves a problem of some kind and is not a strictly abstract idea.
- Example: The recent approval of Nike’s Air Jordan 1 patent highlights how lax the term useful can be, as the unique design is primarily an aesthetic feature.
- Nonobviousness: This is a widespread reason for patent denials and one you could run into in clothing line development. Simply put, if a person with a similar skill set could recreate your idea using publicly available information, you won’t pass the nonobviousness test.
- Example: While pants certainly existed when Levi’s patented their jeans in 1873, it was their metal rivet reinforcement process that made their product non-obvious.
There is a fourth requirement called “statutory eligibility,” but this won’t apply to clothing lines. It’s based on specific classes of disqualified idea types, like abstract ideas, laws of nature, and physical phenomena.
Utility vs. Design Patents for Clothing Lines
After you’ve determined you meet the patentability requirements, you’ll need to decide what type of patent to choose. There are two: utility and design.
| Design | Utility |
| A design patent protects the way something looks. Usually, ornamental designs like those found on jewelry, automobiles, or furniture are used as examples, though this could also apply to clothing. However, many clothing designers automatically assume this is the type of patent they need when that’s not always the case. If your idea changes how clothing functions, you’ll likely need a utility patent. | A utility patent protects the way something works. While that doesn’t seem to apply to fashion, it’s quite common. For example, consider a strapless bra where you can change the straps in many different ways or a shirt that changes color based on body temperature. These are both ideas that received utility patents because of the function of the clothing. |
It’s not unheard of for both design and utility patents to be used to protect something complex with many different parts. As a result, it can be tricky to decide which patent type to choose.
On top of that, you cannot patent a fashion line as a whole. You will have to patent each unique article or core functionality of the garment individually. This is a process that can get extremely expensive, so it’s wise to consult with an attorney first. That attorney may find that there are other IP protections to review.
Do You Need a Trademark or Copyright Instead?
A patent may not be the only IP protection you need. You may need to consider a trademark or copyright, though there are limitations. To understand those limitations, you have to break down what each protects.
| Copyright | Trademark |
| A copyright is designed to protect artistic work like books, screenplays, and even types of software code. It could apply to sketches you make of your clothing or designs and patterns you create for it, provided there’s a significant amount of creative expression. However, it won’t protect the clothing itself as copyrights aren’t designed to cover inherently useful articles that aren’t strictly artistic expressions. | Trademarks apply to branded assets. You could trademark logos used on your clothes and other things that are specifically designed to reflect your brand. Things like the Nike swoosh or the polo player on Ralph Lauren shirts are covered under trademarks. |
As you can see, there’s a lot to consider as you evaluate how to patent a clothing line. In addition, you may need several other types of IP protection like trademarks and copyrights. The best way to approach IP protection in the fashion industry is to connect with an experienced attorney.
The Steps of the Patent Process
Your work has only just begun once you’ve established you’ve got a patentable idea. The patent process itself is long and requires quite a bit of due diligence. All that starts with your search.
Search opinion
The patent search process is extensive. If there are any existing similar designs or prior publicly available information, the patent will be denied. You’ll need to tackle two types of searches: patents and prior art. Patent searches focus specifically on existing patents and how their claims could impact yours. A prior art search is far broader. It seeks out non-patent documents that may reveal information on your invention that makes it ineligible. A search opinion is a comprehensive look at potential conflicts and a legal review of invention eligibility. This will save you a lot of time and frustration in the patent process.
Provisional application
A provisional application is designed to hold your date. In a patent dispute, typically, the person who prevails is the one who filed earliest. A provisional application locks in a specific date and gives you time to gather the information needed. Once your provisional application is accepted, you have one year to file your nonprovisional application. The provisional application is often advisable when you’re still working on prototypes and developing your idea. It’s also a good opportunity to test the market. This isn’t a mandatory step, however, so you can simply file a non-provisional application.
Nonprovisional application
A nonprovisional application starts the official process in which a patent will be granted. This extensive document should include diagrams, images, detailed descriptions, and more. You’ll also have to pay the filing, search, and examination fees based on your entity size. That size is established by yet another form, as fees depend on whether you’re considered a micro, small or standard entity. As you go through the application process, you’ll learn that every step spurs the need for another form. Applications can be hundreds of pages long, and errors can lead to denial.
It’s also worth noting that non-provisional and provisional applications only apply to utility patents, not design patents.
Prosecution
Patent prosecution sounds intimidating, but it’s really just the process of working with the United States Patent and Trademark Office to facilitate approval. It covers all the stages before this one, as well as the physical act of submitting the application. There may be back and forth between the patent office due to follow-up questions. In some cases, decisions will require an appeal. Legal guidance will be critical to ensure a smooth transition to the next step.
Patent granted
At this point, you will have exclusive use of your clothing design for a period of 15 to 20 years, depending on the patent type. Design patents are good for 15 years; utility patents go for 20. However, your work isn’t done when your patent is received. You must maintain it by monitoring it for use, responding to potential infringements, and paying maintenance fees as appropriate.
There is a lot to getting a clothing design patent to consider. Most people find it’s easier to navigate this complex process with an experienced attorney by their side. The world of patents and intellectual property protection is tricky. The right IP attorney makes it easier so you can focus on creating.
Bold Patents can help you obtain your clothing design patent and protect your intellectual property for years to come. To learn more, contact us online or call 800-849-1913.