Out with the old, in with the new?

We’ve all seen Louboutin’s infamous red sole. However, how is such a design protected within the legal sphere? High-end fashion brands commonly fall victim to faux imitations and knock-offs, which is why they need to ensure proper protection against their designs and styles.

If you recall from our 2016 Recap, we spoke to the Samsung and Apple battle in regards to their patent design battle – a case that brought discussion on this topic to light in the new year. However, what are the different ways in which companies can utilize intellectual property regulations to protect their work?

The use of the design patent protection is not a new tactic, but has become the go-to for brands in regards to the protection of their intellectual property. This  extends to the appearance of a functional item, but not the functional item itself. Basically, Louboutin can protect the red role at the bottom of its shoes, but can’t claim rights for EVERY shoe in the world – although we would all love to own Louboutin’s, wouldn’t we? Although this is an American regulation, the Canadian Intellectual Property Office has similar guides to intellectual property and industrial design protection.

However, can trademark law (rather than patent protection) be useful in protecting design’s within the fashion industry? One useful trademark protection regulation is the trade dress. This term generally used to refer to visual characteristics of a product or its packaging that serve as an identifying feature to consumers. I mean, who doesn’t recognize the triangular packaging of the Toblerone chocolate bar, or the shape of the Coca-Cola bottle trade dress? Evidently, the trade dress CAN protect a brand’s design. The question remains, which route – design patent protection or trade dresses – proves to be more beneficial to multi-national fashion companies?

Reality is, there are pros and cons to each option…

The trade dress protection has been utilized in the legal profession for much longer than patent protection (which has only been in use for 15 years). Although it is cheap to attain, in order to establish trade dress protection, it can take years of advertising and marketing efforts for the design to actually become well-known. This is especially true for small start-ups. On the other hand, patent protection is typically granted long before this level of distinctiveness can be met, enabling the design patent owner to deal immediately with infringers.

It is evident that although trade dress protection has its benefits, design patent protection often serves fashion designers better – or at least is better suited for smaller, local brands. What is important here, however, are the options available for both start-ups and internationally known designers.

Our ruling: The newest implementation of design patent protections, over trade dress legislation, better assist fashion brands in protecting their designs. Just like any fashion trend, we rule out with the old, in with the new. 

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