As far as intellectual property for the apparel industry, the largest area of concern is how startup companies and established name brand apparel companies protect new designs, logos, or slogans. The IP specifics which companies in the apparel industry need to focus on are trademarks, copyrights, and design patents. These three categories are detailed below.
Trademarks
A trademark protection filed with the United States Patent and Trademark Office (USPTO) is the way for an apparel company to protect their brand through the form of a logo, name, or slogan of the apparel company. A classic example is Nike’s trademark registration of the swoosh symbol on all Nike clothing items. Although, apparel companies must realize that to fully protect their brand, they must file separate trademark registrations for the company’s brand name in connection with different goods, i.e. shoes, sporting equipment, and backpacks, as well as, a separate registration for the company’s slogan as it is used on the different goods. In turn, we see that the more trademark registrations a company has filed, the less the chance of intellectual property piracy or copycatting. Further, once a company’s trademark has been registered, the owner of the registration will receive nationwide rights to enforce the trademark against other users and will be able to license, either exclusively or nonexclusively, the right for others to use the trademarked name or logo.
Copyrights
Copyrights are quite subjective in the apparel industry, as the ability to copyright a clothing design or pattern depends on the specific clothing article in question and how the design or pattern is being used. For a design on clothing, copyright protection is dependent on whether or not the design falls under the category of a unique and original work of authorship, i.e., in the case of a unique design, or the graphic or artistic portion that a t-shirt company may put on their clothing can be protected by copyright, as long as it is not substantially similar to another copyright holder’s work. However, if the artwork is used to identify the brand or name of the clothing company, then trademark protection is more applicable.
Design Patents
Protection of an article of clothing’s actual shape and design, however, cannot be protected by a trademark or copyright, but instead can be protected under a design patent. According to the USPTO, Class D02 provides for design patents claiming ornamental designs for the following items:
Design patents protect the appearance of an article of manufacture as opposed to the structural features of an item, which would be protected under a utility patent. Design patent protection may include an article’s color, shape, and surface ornamentation. Protection through a design patents requires that the appearance be primarily ornamental in character. If the overall appearance of the design is based by performance instead of by appearance, then the design is considered functional and not entitled to design patent protection. For example, if a designer constructs the shape of a zipper to function in a certain way, instead of constructing it for a purely ornamental function, it does not qualify for design patent protection. Generally, design patents are issued more quickly than utility patents and have a protection term of 14 years from the date of issue.
