There are many options for protecting apparel, but you need to be open
to thinking outside of the box. Design patent protection is not common
in the fashion industry but is trending higher. I recently came across
a case where Lululemon (Yoga apparel) sued Calvin Klein Inc. over allegations
that Calvin Klein infringed Lululemon’s design patents relating
the waistband implemented on their signature, Astro Pant.
A design patent protects the “ornamentation” of an item (ex.
Apple v. Samsung – a particular external phone design incorporating
rounded corners). The duration of protection is 14 years and is a relatively
inexpensive way to achieve protection.
When is a design patent appropriate? When there is a specific design element
to a product which provides a competitive advantage and provides a return
on investment (protection costs).
Design patents are mostly used as a deterrent. In the case of Lululemon
v. Calvin Klein, since the lawsuit was filed, the Calvin Klein pants at
issue disappeared from the shelves, and the parties have since settled.