Design Patent Myths—You can only get design patents for applied ornaments

Another myth is that design patents can only be obtained for ornaments or applied decorations. This myth often—though not always—appears in discussions of fashion designs. So in this post, I’ll focus on some examples from the fashion industry.

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:

 

But the universe of potential design patent subject matter is much broader. Design patents can be obtained for:  (1) surface designs; (2) product configurations (or parts of product configurations); and (3) combinations of both.

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.

Comments

[MacK]

Since I never heard this "myth" before, it would be nice to see some instances of the statement being made. I am not critiquing the post, I just like to collect idiotic and ill informed statements about IP law.