Fashion Designers Look to Copyright, Not Design Patents

An article in today's New York Times discusses the growing threat that high-end fashion designers face from low-cost imitations of their most popular clothing designs. Their industry trade group is lobbying Congress to extend copyright design to clothing. Copyright already protects fabric, textile and jewelry designs, and patterns for sewing, knitting, needlepoint, etc. In some cases, trademark and trade dress law will protect a unique clothing design or element such as the stitching on a pair of jeans.

The fashion industry seems to have forgotten that clothing is eligible for design patent protection. Perhaps copyright's longer term (the life of the author plus 70 years or 95 years for works made for hire) is simply more attractive than the 14-year term for design patents. Or perhaps copyright is more difficult to "design around" than design patents.

But there was a time in the mid-20th century when clothing designers loved design patents. In fact, approximately 15 percent of the design patents issued in the 1930s and 1940s were for apparel and haberdashery designs (Class D2 in the USPC). Many of these designs were for dresses, robes, pants and other garments typically sold in department stores and mom-and-pop clothing stores.

Curiously, clothing design patents took a nosedive on the catwalk in the 1950s and 60s, and bell-bottomed out in the 1970s. Only 2 percent of the design patents issued in the 1970s are in Class D2, which also includes footwear. They rebounded in the 1980s and 1990s thanks to the growing market for athletic shoes. Almost 50 percent of the D2 design patents issued since 1990 were assigned to Adidas, Nike and Reebok.

Why did the fashion industry turn its back on design patents? Was it a change in patent law? Unlikely, since a few clothing designs are still patented each year.

Clothing Design Patents, 1900-2007