Patents ‘in fashion’

Where do you find intellectual property in the fashion industry?

Trademarks and design rights have always been core intellectual property (“IP”) rights pertinent to the fashion industry to protect brand names and the aesthetic nature of fashion garments. For example, the red Christian Louboutin heel is protected as a registered colour trade mark. Innovation is at the foreground of the fashion industry, and where success goes together with creativity and originality, it is important to ensure that any created IP rights are suitably protected.

In a fast-paced and evolving industry, designers must have a robust strategy in place to protect their IP and innovative creations. Evolving technology continues to impact both manufacturers and distributors of apparel. As technologies quickly develop and become integrated into the industry, we expect to see patents seeking to protect the technologically advanced functional elements of fashion goods, and the sale of them, to come into fashion exponentially.

Why would a fashion designer be interested in a patent?

Patents are at the intersection of fashion, technology and IP. UK patents are governed by the Patents Act 1977 and are sought by inventors to obtain exclusive rights over their inventions.

In the fashion industry, patent applications might be made for wearable technologies, smart fabrics, or novel production methods. For example, VELCRO® (which many people forget is a registered brand name for the hook-and-loop fastening mechanism) have patents granted, as does Kevlar® (also a registered brand name, for a heat-resistant, synthetic fibre).

The key criteria that a fashion innovation will need to meet to qualify for patent protection are as follows:

• The invention must be novel, meaning it is distinct from all preceding inventions of a similar nature, known as “prior art”
• The subject matter seeking patent protection must be kept vast to circumvent claims of similarities against prior art, but cannot be too wide to avoid claims of abstraction
• The invention must be considered useful, in that it has a specific utility outside of aestheticism.

If a fashion designer can demonstrate the above, obtaining a patent for a new technological invention in fashion can be a very useful tool. Once granted, so long as the patent annuity payments are made each year to keep the rights valid and enforceable, the designer has a 20-year period of exclusivity to commercialise their invention. For example, the technology forming the invention can be licenced to third parties to use in return for royalties.

If the industry is constantly changing, is there value to a patent?

While in many ways technological advancements, particularly with the introduction of AI, can be considered to increase the disposability of apparel and methods of sale, the core technical and inventive steps behind innovative fashion will be of interest to competitors.

Historically, due to the disposable and everchanging nature of the fashion industry, paired with the length of time it takes for a patent to proceed to grant, fashion patents have, for the most part, been explored territory by designers. However, technological advancement and fashion design are not always about reinventing the wheel but thinking outside the box.

For a designer to get the most out of their invention, it is strongly encouraged to explore routes to patent protection. This way they can commercially exploit their intellectual property rights for an extended period of time, as others may want to reuse and adapt elements of the same invention.

As technologies continue to develop and become integral to new and exciting fashion projects, we expect to see patent applications of this sort to come into vogue.