Protections available for new fashion designs in the U.S. appear more limited than in certain other countries and jurisdictions. There is no unregistered design right. Copyright laws tend not to apply to utilitarian articles like footwear and bags. Moreover, developing trademark and trade dress rights usually requires extensive prior use sufficient to demonstrate acquired distinctiveness or secondary meaning in the particular article to establish source-indicating significance among consumers.
Many fashion creations can, however, benefit from protections offered by design patents. A design patent is often easier to obtain than a trademark registration for trade dress. Given that there is no requirement to show consumer recognition of the design or configuration as a source indicator, design patents are also potentially available for a wider range of product designs and configurations, even those not yet launched in the marketplace. However, a design patent application must be timely filed or the applicant risks losing these rights.
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