As a fashion designer, you are an artist, and even though your creations are functional, your work deserves protection. Legal protection in the form of copyrights, trademarks, and design patents have different requirements and steps to follow.
Congress has denied copyright protection for clothing design because it views clothing as useful articles and not artistic creations, says Biana Borukhovich, a New York-based fashion attorney.
"Generally, copyright protection is not available for the fashion industry in the U.S.," she adds. "However, there are a few exceptions of when a fashion designer can apply for copyright protection."
Copyright registration for clothing generally falls within two- or three-dimensional artwork directed to the artistic features of the clothing, says Darrell Mottley, an attorney with intellectual property law firm Banner Witcoff.
"While useful articles, as such, are not copyrightable, if an artistic feature would have been copyrightable as a standalone pictorial, graphic, or sculptural work, it is copyrightable if created first as part of a useful article," he says.
To determine eligibility, the U.S. Copyright Office will review the clothing, Mottley says. "To access originality, first, the pictorial, graphic, or sculptural features must have been independently created by the designer," he explains. "Second, the pictorial, graphic, or sculptural features must possess sufficient creativity. The lack of originality is where recent copyright registrations for clothing have been refused by the Copyright Office. Careful consideration and review of the clothing line should be conducted before seeking a copyright registration."
In addition, sketches of your designs are eligible for a copyright, but the process protects just the picture and not the idea, Borukhovich adds.
Trademarked clothing brand
If a copyright is not available, you can trademark other elements of your clothing line to protect it. Designers can trademark their brand names and logos in order for their goods to be differentiated by the consumer, Borukhovich says.
"It is important to obtain intellectual property protection early on because if the brand name or logo is similar to that of another, the brand owner will need to rebrand or [face possible liability], which can potentially turn into an expensive legal lesson," she says.
Trademarks are words, names, symbols or devices, packaging design, and pictures that identify and distinguish the designer clothing, Mottley notes.
"Designers can seek a trademark registration, for example, the logo or name of the clothing line or the name of the designer," he says. "However, the designer needs to carefully consider if the word or name is being used properly to qualify for a trademark or if their trademark is not confusingly similar to preexisting trademarks. It is helpful to have a trademark search and registrability review before filing a trademark application."
To trademark your brand name and logo, start by searching online to make sure no one else is using the name you've chosen. Perform a general web search as well as one on the U.S. Patent and Trademark Office website. If someone else has already trademarked the name, you'll need to create a new one. Next, develop a unique brand logo that uses the name and incorporates a unique combination of design, font, size, and color.
Once you've got a unique brand name and logo, it's time to trademark it with your state. The U.S. Patent and Trademark Office offers a page with links to each state. Complete the application with your state and pay the fee. The state process is faster than the federal process and sets out some ownership rights for you immediately. However, protection is limited to that particular state.
Next, file an application for the trademark with the U.S. Patent and Trademark Office, which entails completing a form, paying a fee, and waiting up to six months. An attorney will review the application and approve or refuse its registration. If approved, no one else can use that name or design. One of the most common reasons a trademark is denied is because the mark looks or sounds similar to another registered trademark.
Trademark issues can become complicated so it may be a good idea to consult with an attorney or experienced legal service.
"Unlike utility patents, design patents are directed to the aesthetic appearance of clothing designs and are not subject to the same rules as copyright," Mottley says. "Design patents are important tools in protecting against clone and simulation-type products made by third parties."
Protecting your designs
While you may or may not be able to prevent your latest look from being knocked off, taking steps to obtain available legal protection can provide you with peace of mind.
"Fashion is one of the world's most important creative industries," Mottley says. "While combating fashion design piracy is challenging, the United States intellectual property laws can be employed to protect fashion designs by design-driven companies and designers. In most cases, high-value fashion designs need a blend of copyright, trademark, and design patent protection to combat piracy."