From the hole-punched rubber of Crocs to the interlocking "G" logo of Gucci, a variety of patents and trademarks protect the designers of iconic clothing (and are routinely ignored in the fast-fashion knockoffs available in China towns across the country). Different types of rights protections protect different types of clothing design, which in turn affects the design patent cost, making it a tangled web that patent law weaves. But, with a little legal brush-up, you've got the needles to stitch all that info into a straight line.
Clothing and Intellectual Property Rights
Before you can dig into how to patent a clothing design, you'll need to know the type of intellectual property protection that's best suited (sorry) to your design – the type will, of course, have a significant impact on your out-of-pocket (sorry, again) costs. IP protections in the United States fall into three main categories:
- Patents protect inventions
- Copyrights protect literary and artistic works
- Trademarks protect brands
Well before fashion become a mega industry, the U.S. Copyright Office determined that clothing was functional, which excluded it from the more artistically oriented copyright protection. Modern fashionistas often disagree with this determination, but the laws remain in place, though it is possible to copyright two-dimensional patterns (which are more akin to traditional definitions of art). While trademarks can't protect an article of clothing, they can protect brand-oriented aspects that appear on clothes, such as logos and trade dress (i.e., packaging). Like copyrights, trademark registration usually costs less than $500.
Patents for Clothes
Given the scope of other types of IP protections, patents tend to cater to clothing. Specifically, utility patents are a good fit for clothing ideas that are both new and focus on function (such as a fireproof jacket for emergency personnel or a innovative type of clasp on a bra). Design patents, on the other hand, protect the ornamental design of functional items, such as clothing and clothing accessories.
These clothing-related patents can be filed with the United States Patent and Trademark Office. A patent can be had in about 10 to 18 months and typically remains in effect for 14 or 15 years.
Above all, the USPTO requires that clothing and accessories are "novel and non-obvious." This means that, in order to be patented, the clothing item must be unique, not previously known in the U.S. or publicized abroad. Likewise, it must not have produced for widespread use more than one year before the patent application.
Read More: Why Do Patents Expire?
Patent Cost Breakdowns
Now that you know that patents are usually the way to go with clothing IP protection, how much is a design patent, anyway? Your costs will include both the filing fees and, optionally, the assistance of a patent lawyer and a professional illustrator to draft detailed patent drawings. Let's take a look at some costs you may accrue along the way, as of 2019 rates reported by Upcounsel.
- Basic design patent fee: $760
- Design patent fee for a small entity: $380 (a small entity is a nonprofit organization, or an organization with 500 or less employees)
- Design patent fee for a micro-entity: $190 (a micro-entity has a gross income of less than three times the median U.S. household income and has not been named as inventor on more than four previous patents)
- Estimated cost of hiring a patent lawyer: $1,500 to $3,000
- Estimated cost of professional patent illustrations: $600
Keep in mind that these fees apply per individual patent; consider each clothing concept a single patent. These costs are also oriented toward design patents. However, utility patents tend to cost much more, with Upcounsel estimating those filing costs at about $3,500 to upwards of $4,000, depending on the complexity of the mechanism.
As the world of fashion moves quickly, it may be possible to request that the USPTO expedite your patent. Processing time can be cut down to as little as six months, but this will come at an additional fee.
Patent filing costs vary widely, from about $200 for a very small company's design patent to upwards of $4,000 for a complex utility patent. These costs don't include your patent attorney's fees.
- Upcounsel: Clothing Design Patent: Everything You Need to Know
- WWD: Think Tank: Protecting Fashion Design in the World of Copycats, Fast Fashion
- New Media Rights: Can You Copyright Clothing Designs?
- LegalZoom: How to Get a Patent on an Idea for Clothing Accessories
- Upcounsel: Design Patent Cost: Everything You Need to Know
- Westerman, Hattori, Daniels & Adrian, LLP: Small Entity and Miro-Entity Status Requirements
As a freelance writer and small business owner with a decade of experience, Dan has contributed legal- and finance-oriented content to diverse sources including Chron, Fortune, Zacks.com, Motley Fool and MSN Money, among others.