Protecting the Material World: The Role of Design Patents in the Fashion Industry

Design patents are an under-utilized tool in the protection of the work of fashion designers. Although the fashion industry annually generates billions of dollars in sales in the United States alone, many designers do not adequately protect their intellectual property. Multiple efforts to create a sui generis statute specifically for fashion designs have stalled in Congress, but, the growing market of nearly-identical copied goods—known as knockoffs—threatens the authentic fashion industry. As a result, both high-end and emerging designers suffer. While a statute specifically protecting fashion designs does not yet exist under American law, fashion designers can find protection under the existing laws with design patents. This article by Finnegan attorney Elizabeth D. Ferrill, illustrates how knockoff goods present a particularly serious problem in the digital age, consider why designers may choose not to protect their work with the existing intellectual property protections, and show how design patents offer an economically feasible, effective way for fashion designers to protect many of their designs.