Let’s say you’re a thriving, young designer, a darling of the fashion press and pumping out one hit design after the other, particularly in the handbag space. What’s such a designer to do when everyone from Forever21, Nastygal and even HSN sells merchandise seemingly “inspired” by your
blood, sweat and tears work?
If you’re Alexander Wang, you arm yourself with a slew of attorneys and aggressively seek patent protection on your designs. U.S. law is notorious for not being friendly to fashion designers. When even the usually unflappable Diane Von Furstenberg rallies Washington to arms (to no avail), you know that the enduring problem with knock-offs is really chafing designers. But the initiatives have failed. And fashion companies, in general, have accepted the fact that in the U.S. fashion industry, only trademarks are protectable, not designs. (An exception is fabric prints, which can be copyrighted. Note to aspiring designers: incorporating copyrightable prints into your designs is a smart way of deterring knock-offs.)
Patents are divided into utility and design, and can take anywhere between eight to 20 months to obtain from the U.S. Patent & Trademark Office, thus rendering them largely impractical for the fashion industry, where a fashion season cycles through in a matter of months.
Wang, however, has created an oeuvre marked by a hardware-heavy aesthetic. Likely realizing that copycats would first replicate the studs on his bags and clothing, Wang filed for and in May 2012 received patent protection on the studs themselves. Emphasizing the specific grooves and “circular channels” on the studs, Wang was granted a utility patent for 20 years of exclusive use. This must mean that Wang intends for his studs to be a part of his brand’s DNA for many years to come.
Here’s the problem. Take the huge success of Wang’s Rocco bag, with its multiple rows of studs at the bottom. While the studs themselves are patented under a utility patent, the design of the bag is not; the placement of the studs in rows on the bottom of the Rocco bag can be, and is, replicated by anyone. (See the $54 version being sold on Nastygal, left.)
And so Wang recently also went through the process of obtaining design patents for the entire bags themselves, which the USPTO will grant if a designer can prove that his or her design is: 1. new; 2. “nonobvious” — a legal term of art; and 3. ornamental only, not solely functional. Elements one and two are hard to meet in the fashion world, but earlier this year, Wang successfully obtained a14-year design patent on several of his “bags with corners” — the official title of the patents on his handbags with metal-covered corners.
This is a good indication that Wang anticipates his “bags with corners” to be signature bags in his line, enduring for multiple seasons. Unfortunately for Wang, one slight variation is all it takes to make a “safe” knock-off. Check out similar bags from other, lower-priced retailers near the bottom of the page.
Notice that Wang’s bag has not been literally replicated, but the overall style and its salient features, the satchel design and metal corners, have. As long as the consumer is not confused as to the source or maker of the item in question (this is the crux of intellectual property protection in the fashion world), a design can generally be tweaked and re-created. And while designers may be enraged at the products sparked by their hard-won creations, consider why initiatives to introduce legislation protecting designs have been defeated. Who can really claim exclusive ownership of a specific design? Isn’t fashion inherently referential? Wouldn’t granting a design patent of 14 years over a dress that could credibly be independently created stifle the very sense of innovation and competition that intellectual property law is designed to protect? And isn’t the world better served by an egalitarian fashion regime with cheaper-priced alternatives?
For the original article, click here.