While design patents may sound like a good idea for a lot of things, they don’t work well when it comes to fashion.

There’s no copyright protection for fashion. That’s because copyright, the usual manner of protecting creativity against copying, doesn’t apply to useful items such as clothing. Trademark law is of marginal use in protecting against knockoff designs, because it applies only in special cases.

Design patents, which protect the ornamental design of a functional item, seem like the perfect solution. But as discussed below, they don’t work well for fashion because among other things, they take forever and are too expensive to obtain for each item in a collection.

Just quickly let’s outline what trademarks and trade dress are to distinguish them from design patents. It gets confusing because many items are protected by both types of intellectual property law. Take the iconic contoured Coca Cola bottle. It’s protected by trade dress law because the public associates it with Coke. It was also protected by a now-expired design patent because it’s an ornamental design for a useful object.

Trade dress (a legal term), refers to the characteristics of the way a product looks or is packaged (which includes a building design) that signifies the source of the product for customers. If someone started an overnight shipping company and used brown trucks, you can bet UPS would sue for trade dress infringement.

Brown trucks are associated in the public mind with UPS just as their name and logo are. The name and logo are referenced to as trade “marks” and the truck packaging is referred to as trade “dress.”  Both help customers identify that a certain product or service comes from a unique source. This trademark also distinguishes a product or service from the competition.

Trademarks and a product’s trade dress are protected in the US by section 43(a) of the Lanham Act, which states trade dress may be protected without formal registration with the patent office. Trade dress protects consumers from the packaging or the appearance of products that are designed to imitate other products. Put another way, it ideally keeps consumers from buying one product thinking that it is another one.

Trade dress is an imperfect way to protect against fashion knockoffs because it only applies where there is a likelihood of customer confusion. But that’s not usually the case with apparel copies. If a Balenciaga dress is brazenly knocked off, it’s certainly not fair—but it usually doesn’t cause confusion unless the design is a signature one that the public associates with Balenciaga. That element is usually lacking in knockoff cases, and thus trade dress law is of no use.

So is it design patents to the rescue? It sounds like a perfect fit, since they protect the ornamental design of a functional item. It even sounds like a kind of copyright for functional items—and in some sense it is.

If patents can protect a Coke bottle, why can’t they protect fashion designs? After all, they are the kind of patent that protects the creator of any “new, original and ornamental design for an article of manufacture” for fourteen years. The theory is certainly there, that patents may work well for fashion designs, but alas, no. Patent eligibility is based on the creation being a “new” invention and must also go beyond the previous “art” in a manner that isn’t that obvious. That is likely about as clear as mud.

Suffice it to say that when it comes to fashion, the courts have usually not decided that works of fashion meet those requirements.

Patents also take a lot of money and a long, long time to get, and usually by the time they are granted for works of fashion, the life of that product (three to six months) is already done, and another “new” item will take its place. Small designers don’t have the time to wait nor the money to patent, even if they could.

Ultimately, even if a designer does have a patent, the courts tend to find them invalid and patent infringement is only a successful argument in very few cases. This isn’t to say that one day a case may not come along that rocks the foundations of the design patent/trademark/trade dress/infringement issue. All things are possible when it comes to the law.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.