Clothing design

Mark Phillip Walters

In answering your question, I’ll first assume that the dress you seek to protect is not new in terms of how it functions, i.e., the dress is not designed to provide some new and useful result, like providing a new therapeutic benefit or other utility. I’ll also assume that your methods for making the dress are generally no different from those used by other prior dress makers. In short, I’ll assume that you seek only to protect how the dress looks as opposed to how the dress is worn or how it is made. This is the typical situation for most dress makers.

Unfortunately, your ability to prevent “copying” of an ornamental design for a dress is very limited, especially in the short term. A new dress design is potentially subject to design patent protection or protection through copyright, but the dress design must meet certain prerequisites to qualify for such protection and the protection afforded under either design patent or copyright law is narrow. Over the long term, your dress design may obtain such notoriety that it functions as your trademark, but this is definitely a rare case given that dress “styles” are often imitated and copied by others in the field.

Under design patent law, an ornamental dress design may be protected if it is new and “non-obvious.” If you think your dress meets these criteria, drawings or photographs can be prepared and submitted in a patent application to the United States Patent and Trademark Office (“USPTO”). At the USPTO, the application will be assigned to an Examiner who will consider your application in the order it was received by him or her. Normal examination of a design patent runs anywhere from 9 to 24 months, and in some cases it may take longer. The Examiner will look at your application and compare it to other prior art dress designs to determine if your dress is both new and non-obvious. If the Examiner agrees that the dress is new and non-obvious and that the application has no other technical defects concerning how it was prepared or submitted, a patent will issue. During the time the patent application is pending, you have no exclusionary rights based on patent law. You cannot prevent others from copying your design under patent law unless and until your patent issues. Once your patent issues, your ability to enforce this patent against others will most likely be limited to the specific design elements that are new, and only against dresses that are highly visually similar to your own.

Given the length of time needed to obtain a design patent and the costs of going through the patent process, it’s no wonder few dress makers seek design patent protection for their new dresses. I was able to find a couple: US Patent Nos. D459057 and D459572.

Depending on the particular design for your dress, certain design elements may be protected under copyright law. Copyright law offers limited protection for garments where their “pictorial, graphic, or sculptural” features can be “identified separately” and “exist independently” of any utility. Whether or not your particular dress meets these criteria is something the Copyright office will determine initially upon the filing of an application. The bonus for copyright protection is that registration may be obtained on an expedited basis, and if you have registration in place prior to the infringement, you may seek statutory damages and your attorney’s fees. Infringement of copyright in a dress will be limited to those elements of a pictorial, graphic or sculptural nature and you will be required to prove that you yourself created those elements as opposed to copying those elements from the works of others. In general, you need a pretty close copy to support a claim for copyright infringement. It is not a violation of copyright law to copy someone else’s “style” because copyright law does not protect ideas, only an individual’s expression of those ideas.

Daniel Du-Ning Woo

I'll add some comments to Mr. Walters' answer. Your question doesn't say where you are located. If for example, you are in one of the former British commonwealth countries, you may be able to get a design copyright, which is not available in the United States. Most clothing companies and designer protect their products with additional intellectual property rights, primarily under the trade mark laws and sometimes with well-known designers under personality or publicity rights.