To be clear, you certainly can get design patents for applied ornaments. For example, Alexander Wang Inc. recently obtained three design patents for decorative stud designs, including this one:
Indeed, in the fashion industry, designers have obtained design patents for a broad range of items, including fabric designs, shoes, handbags, and garments. For example, Stella McCartney Limited recently obtained a design patent for this dress design:
This isn’t a new phenomenon. The original design patent act protected configurations as well as applied ornaments. And the Patent Office has been granting design patents on fashion articles—including dresses—since the 19th century. Here’s just one example, from 1888:
And these types of design patents do get litigated. Lululemon’s case against Calvin Klein (and the patented pants at the center of the dispute) got a fair amount of attention last year. And, in case that has been called “Fashion’s ‘Apple Vs. Samsung,’” Spanx is defending against allegations that it infringed various design patents for shapewear. So this is a trend that doesn’t seem to be going away anytime soon.