Skip to main content

Can clothing design (shape/fit/look) be patented or protected by USPTO?

New York, NY |

I have developed a new kind of jeans and I from my amateur initial research it seems that there is nothing like this on the market. And of course in due time I will retain an Attorney given I need to do this ASAP.

Now, can clothing (shape/fit/look/colors) be patented? or ONLY if there is a unique invention that makes the clothing better can be patented?

If it can't be patented, what would I do if someone copies the way my clothing is designed?

Attorney Answers 6

Posted

Trademark are words or logos identifying the source of the goods. Patents must be useful Design Patents must not be useful, but in my experience are very difficult to obtain. Colors may be protected under very unusual circumstances, like the recent case permitting the color on the soles of shoes to be trademarked, but that is very novel law. I represent a number of clients in the denim industry. Shape, fit or look alone cannot be protected. Under some circumstances stiching patterns can be protected.

The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

Mark as helpful

1 lawyer agrees

1 comment

Asker

Posted

Thanks for responding! What about designs as in patterns or anything like that? I can imagine that there are billions of shirts that get sold but it would be hard to get a patent on the design, right?

Posted

I have used design patent to protect clothing in the past, with the degree of protection proportion to the degree to which the clothing is unusual. I have applied for design patents on long johns and police tactical vests, to name a few. Where the clothing is near perfunctory everyday wear, the PTO has traditionally opposed it by citing fashion catalogs.

Don't forget the use of trade dress (no pun intended) and perhaps the incorporation of a trademark device on, or as an integral part of the clothing.

----------------------------------------------------------------------
Please remember to designate your question's BEST ANSWER.

Please remember to designate your question's BEST ANSWER.

Curt Harrington
Certified Tax Specialist -- State Bar of California Board of Legal Specialization
Electrical-Chemical-Mechanical Patent (Intellectual Property) Attorney
(562) 594-9784
http://patentax.com
About Curt: http://patentax.com/curt/index.html
Visit the Library: http://patentax.com/library/

Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.

Mark as helpful

1 lawyer agrees

Posted

Better is not a requirement for a patent, but unique [new] is, if unique enough to be non-obvious. Useful (35 USC 101), new (35 USC 101, 102) and unobvious (35 USC 103) are the criteria. Your new jeans will likely meet the first two criteria as jeans are a useful thing and you say yours are new. The difficult criteria for you will be obviousness. Shape, fit, look and color are mostly just choices and thus are likely to be found obvious.

That was for a utility patent. There is also available a design patent, which is for the ornamental appearance of a functional item, such as a pair of jeans. That you should be able to obtain as the shape and look are the keys to a design patent.

You might have some artistic features that could be the subject of copyright, but I doubt they are going to deemed sufficiently artistic and nonfunctional.

Finally, there is the possibility that some of these "new" features might become trademarks of yours.

To maximize these IP rights, you need the sage advice of an experienced IP attorney who is versed in all of those rights.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

Mark as helpful

3 lawyers agree

Posted

A new ornamental design of an item can be patented, though it may be difficult for clothing.

Michael
www.accessipgroup.com

The answer provided is only for general information purposes and does not constitute legal advice.

Mark as helpful

1 lawyer agrees

Posted

I'm not an IP attorney, but couldn't the actual method of the design be patented or copyrighted, rather seeking protection for the design itself?

The foregoing is not legal advice nor is it in any manner whatsoever meant to create or impute an attorney/client relationship.

Mark as helpful

Posted

Clothing designs can be patented. If the design primarily relates to appearance, rather than function, then a design patent can be obtained. If the design primarily relates to function, then a utility patent can be obtained. A piece of clothing can have multiple designs that each relate to a part of the clothing (e.g., a zipper, a pants flap), rather than the entire piece, so that a patents can be obtained for the different designs. As you state it, "shape" and "fit" indicates to me a function, in which case a utility patent would be needed; and "look" and "colors" indicates to me non-functional appearance so that a design patent would be needed for the design(s) for the look and colors.

Mark as helpful

Patent infringement topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics