On October 2, 2009, the New York Times reported on "Defying Knockoffs and Inviting Them". In the retail business, a company may fall into bankruptcy if it does not prevent knockoffs to protect its fashion designs.
Companies can apply for design patents on fashion designs, but it may be expensive if the designs are not long-term or high volume sales. Design patents may not be recommended for short term or seasonal designs. Cost for preparing and filing a design patent application is about $3K. The application is not as expensive as a utility patent application because it consists of drawings with 1 - 2 page descriptions, and does not require the drafting of claims. Time to issue is probably 6 - 12 months, assuming there are no conflicting designs.
Design patents only cover the ornamentation of the designs. For example, a t-shirt may have 6 hearts in a row - the design patent protects the way the item looks. If someone else did a t-shirt with a pattern different from the design patent (for example, 5 flowers in a row instead of 6 hearts in a row), then there would not be protection because it is not an exact knockoff. The company filing for intellectual property protection would need a design patent application for each different pattern.
Design patents provide similar protection as copyrights. Copyrights are traditionally for text but are now being used for designs. Copyright is intellectual property that gives the author of an original work exclusive right for a certain time period, including its publication, distribution and adaptation, after which time the work enters the public domain. The main difference between copyrights and design patents is that the damages for patent infringements might be more. A copyright registration for the assertion of rights requires the same specimens as for a design patent filing - a clean graphics of the design, both alone and on the shirt.
Design patents do not cover functions. For example, if a shoe lights up, for the protection of the shoe lighting up function, the company would need to file a utility patent. A utility patent protects the way an invention is used and works. Utility patents cost $6K - $8K. The filing requires drafting claims and figures. The utility patent would protect the function no matter the design. The utility patent would probably also protect the designs themselves if the company filing for intellectual property protection drew the designs into the patent application. The company filing for intellectual property protection would need different claims for each type of function such as a claim for a shoe lighting up when two people are close to each other, and another claim for lighting up when a person is running. The application needs to indicate how the function is done - the function process should be novel. Obtaining patent protection might not be worthwhile if the patent office asked to narrow the claims because the company filing for protection is not protected unless another party does the process exactly. For example, if a claim for a lighting up function occurs through electric circuitry, and another party does it through chemical process, there is no infringement protection.
If a company wants to pursue patent protection for products already introduced to market, the company needs to file an application within one year of when it came up with the ideas and started selling the products. In the US, after one year, the company can only file an application for improvements. Even if the company is not time barred from filing in the US for products already sold, it is no longer able to get protection in foreign countries because there is no one year grace period outside of the US.
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