"When Taylor Swift wore Cassey Ho's signature pirouette skort, the internet spun in a frenzy to find it," wrote reporter Rae Williams with Spectrum News 1 SoCal in her coverage about fashion designer Cassey Ho's experience of patenting the pirouette skort Taylor Swift wore and then learning that other brands were copying her patented skort design.
To better understand the challenge small brands face in protecting their designs, Rae interviewed Gina Bibby, intellectual property and brands lawyer who leads the global fashion tech practice at Withers, to discuss the types of patent protection available to brands and designers, the rights associated with patents and the enforceability of those rights against alleged infringers.
Leveraging intellectual property laws is one of the most effective ways for brands—particularly small brands competing with larger counterparts—to protect their assets.
So, what can fashion designers and brands do to protect their designs?
It should come as no surprise that leveraging the intellectual property laws is one of the most effective ways for brands and designers, including small brands and designers, to protect their designs. For example, obtaining patent protection for innovative garment designs or constructions can be a powerful deterrent to copying; however, obtaining a patent is a time consuming and expensive process. So, brands and designers who are willing to invest the time and money to obtain a patent should be willing to enforce their patents against infringers.
Designers and brands must first evaluate whether their designs can be protected for their unique functionality, appearance, or both. A utility patent protects how something functions while a design patent protects how something looks. Notably, design patents are generally easier and cheaper to acquire than utility patents, but more difficult to enforce because they can be more readily designed around.
There are a couple of enforcement options available to designers and brands that own patents. A brand or designer can bring a patent infringement lawsuit against an alleged infringer, which is costly and time consuming, or negotiate a license with the alleged infringer to avoid costly litigation.
These days, social media-savvy consumers are less tolerant of large brands that exploit small brands. This shift in consumer values underscores the importance for brands to act morally and respect the intellectual property rights of others.
Watch the video news story featuring Gina below. See also: 'How Popflex founder Cassey Ho is fighting for fairness in the fashion industry' by Rae Williams.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
