Coco Chanel said, “Fashion is not something that exists in dresses only. Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, what is happening” and now Fashion is in our courtrooms. In the fashion world, designers must combat two arch enemies—knockoffs and counterfeits. On September 20, 2012, the Senate Committee on the Judiciary voted for the Innovative Design Protection Act of 2012 (a.k.a. the “Fashion Bill”) to proceed to the Senate floor without amendment, and on December 20, the bill was placed on the Senate legislative calendar. The Fashion Bill extends copyright protection for three years to fashion designs that “(i) are the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.”
Proponents of the law, including major fashion houses, claim it would provide more protection for fashion designers by closing existing gaps in U.S. copyright law. 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. 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.
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.