Legal Question in Intellectual Property in New York

Re: apparel design patent

Further to Mr. Elman's response, the name you have created for the clothing (the "brand" name) may be protected by trademark (not copyright).

As for the time frame, design patents, copyrights, and trademarks are relatively straightforward to file. But first, you will want to create a comprehensive strategy for protecting the Intellectual Property (IP) with your attorney, and you will likely want to conduct clearance searches to reduce the likelihood of complications with the registration process(es). Depending on the attorney's schedule and strategy, filing should only take a few weeks. Registration can be expected within a year, absent complications which require attorney argument. Utility patents are the exception, and if you go that route, you can expect an average of a 2-3 year process to obtain the patent.

I'm sure that attorneys' fees will vary greatly for these services. The government filing fees are fixed, though, and you can see them at www.uspto.gov.

As the attorneys' fees will vary, so will the attorneys' strategies and services. It is important to feel comfortable collaborating with the attorney you choose to create a comprehensive IP portfolio and strategy which best suits your objectives. It is also important to have confidence that your attorney will let you know the status of your case(s) when there is something to report. I point this out specifically because nothing may happen for 6 months, and you might not hear from the attorney for 6 months. During that time, you have to be able to trust your attorney that s/he didn't forget about you or your cases, and s/he will consult you when decisions need to be made. (THIS LAST POINT IS VERY IMPORTANT! AS CORPORATE COUNSEL, I HIRE MANY OUTSIDE ATTORNEYS TO DO PATENT WORK, AND I HAVE HAD TO FIRE A FEW FOR NEGLECTING THE CASES AND NOT CONSULTING ME ON DECISIONS).

I am jumping ahead here a little bit, but you will also want to consider if you will sell your product(s) only in the US or in other countries as well. IP rights are country specific (except some that are regional, e.g., EU, OAPI, EurAsia). There are also centralized filing mechanisms to obtain IP rights in international jurisdictions (e.g., the PCT system). If you intend to sell outside the US, these are strategies that you should also discuss with your attorney.

I wish you the best of luck with such an exciting new project!! If you have any further general questions, feel free to send me an email at [email protected].

Best regards,

Sarah

Re: apparel design patent

The patent you described is a design patent. It is limited in scope and is only enforceable for 14 years. We generally charge about $1000.00 plus filing fees for a design patent application. On the plus side, there are no maintenance fees and generally fewer office actions than is normal for utility applications. Please feel free to contact me if you want further information.

Re: apparel design patent

Hi,

Yes, if you seek a design patent, then every embodiment that looks different would be a different patent. Examples of design patents I have prosecuted include an attachable watch US D292677 and others, though not clothing, are US D385881 and US D317360.

In some circumstances, one can get a "regular" utility patent for a design of clothing, and the claims of a single patent are likely to embrace a variety of embodiments. For example, I have helped clients obtain the following regular (utility) patents for various constructions of clothing: US 5890231 and US 6817034. Also, if you consider a prayer shawl that converts into a wedding canopy to be a form of clothing, I also obtained a patent for that as US 5227215.

All of these patents can be downloaded without charge from sites such as http://freepatentsonline.com

Yes, it is possible to generate a trademark that includes a graphic that represents the item's appearance. For example, Apple has done that with regard to the iPod. See http://www.tuaw.com/2008/05/12/apple-gets-trademark-for-ipod-shape/

In addition, copyright can be used to protect images of the product and/or decoration applied onto the product.

You are right in identifying various members of the legal "toolbox" potentially available to provide exclusivity for novel designs. For specifics, be sure to consult an attorney with expertise in the various aspects of intellectual property. Of course, note that public postings like this aren't legal advice and don't create an attorney-client relationship.