The Basics of Patent Protection for Design

Whether it’s high-tech wearables or reinventing a fashion staple,  you are an inventor, an engineer, the architect of your design. Those ideas are valuable, which means they’re also at risk of being copied or worse, stolen. So how do you protect your design? Is it even worth protecting? And what about competition?

I asked myself all of these questions over and over again as I created the first transitional swimwear line, the B. Side. From the evolution of a wool bathing suit to the first bikini ever produced in 1946, swimwear has had to be re-designed to fit the demands of its versatile consumers. So I asked myself, what are my bathing suits doing for me? I needed to buy at least 2 per season, one for show and one for play. Then there was the issue of quality, value, fit, and overall function (does all of this sound familiar?). It was time for all this to change; it was time for a swimsuit that gave me more options.

Then I did it! I finally figured out how to design a pattern that could not only be reversible but could be worn in over 10 ways, just by moving your straps. With a little imagination and knowledge of advanced fabrications I was able to re-engineer the materials and construction of the current product available in the market. However, from my AH-HA moment to the launch of the B. Side, there were many hurdles to overcome, lessons to learn, and mistakes to be made in order to set our designs, philosophy, and innovation up for the opportunity of success.

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Now I am going to tell you the hardest lesson: fashion design cannot be protected. What can be protected, however, are the pieces that make up that design by the strength of the brand behind it.

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Protection from the First Sketch:

The first thing to consider is what you are actually inventing. Which aspects of your design are truly original and have never been to created or sold? Like me, I am sure you were inspired by many different designers and pieces already out there on the market. Ask yourself: How can I make my design unique?

From the start, you need to start thinking about how your idea can make an impact on every level. Consult with the best and brightest in your market! Receive feedback from your ideal consumer and even consult with your lawyer. You don’t have to tell them every detail, but instead focus on giving consumers, lawyers, experts, etc. the information needed to justify putting the energy, capital and time into making this idea a reality. By doing this, you are assessing your market value without giving away too much information.

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The Process of Prototyping:

Now you have a worthwhile design that needs to come to life. Not only are you experimenting with your idea, but you have to ask other people to help you experiment too. You must place a lot of trust in others as well as in your design method in order to be successful. It is important that  you have trust in the method of piecing together your design in small steps.

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Working with different specialists on each individual part of your prototype is essential. This method has multiple advantages to a turn-key sampling approach. Yes, there are a lot of separate parts to manage and extra costs to endure, but each person will be a true craftsman in his or her field. Even more, you can be assured that the innovation and technology for the entire product isn’t basic knowledge because you are working with different entities.

How to Protect Your Prototypes:

  1. Non-Disclosure / Confidentiality Agreements
  2. Exclusive Rights Agreements regarding a particular fabric, materials or technology
  3. Shared or partner Asset Agreement

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Intellectual Property Possibilities:

When I approached this topic, it scared me a little. Luckily, I had pursued some of the above prototyping protection so that I could buy some more time to really learn about my IP potential. There is so much to learn about the value in the product that you have designed. Creating something that can’t be replicated was the first requirement. But in the world of knock-offs, copy-cats, and fast fashion, I had no idea what that definition meant or what someone with more money could do with my ideas.

Pro-tip: Consult a great patent attorney, and make sure you do lots of research!

Ways to Protect Inventions

  1. Brand Trademarks (™)
  2. Provisional Patent vs. Patent: A) Utility Patent: Original construction and use/functionality. B) Design Patent: Fabric technology/composition
  3. International Intellectual Property Protection

Market Value and Expansion:

Thinking about the separate parts of your design is also easier to capitalize on. If you truly have created and protected an original construction or technology as a part of your garment, you have opened the doors to licensing and partnerships. This gives other people or brands the opportunity to be a part of your innovations under your control. This is something that potential investors love to hear. The fact that your brand can have a multi-revenue channel gives your brand all the more power to grow and be successful.

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Clear Expectations:

No matter what, innovation doesn’t happen overnight and neither does protecting your designs. It took me over a year to see my idea become the suits available on the B. Side and even longer to pursue our intellectual property. The trick is to learn the difference between the time spent innovating and the real cost of that innovation.

At the B. Side, we have a long way to go, and many more re-designs to come. But by simply taking the steps to protect the pieces that make up our B. Suits we know that we can build a brand that can’t be replicated. This is just one part of our mission to make a positive impact on the future of swimwear, and make the biggest possible return while doing it.

Continue to innovate and create smarter style. Re-think the definition of where fashion meets function. Just remember, the only thing you can truly protect is the brand you build around your designs!

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  • Déjà

    thank you so much for your advice! I am in the midst of creating my swimwear prototype and this is beyond useful.

  • Giovanna Fernandes

    Is there an easy way to find out if what you are creating has not already been created and patented somewhere else? How to protect your company from litigation from other companies that may have a patent for something similar to what you are doing?

  • Peter Cers

    You are absolutely and completely wrong. There are design patents and utility patents and you may need to file both. But you can only protect your innovations with legal protections. Trying to “protect” them by creating a unique brand is ludicrous. How are you going to protect yourself when deep-pocketed Nike “borrows” an idea? Tell me that.

  • http://www.ebatotes.com Emmaly Knecht

    Peter is right. I think in patent land, when it comes to fashion design it’s not worth the money. Not to mention you look at a power house like Apple who made the first iPhone. They have patents up and down yet they are not the only smartphone on the market. In fashion, in my opinion, your money will go farther developing your brand and building a steady following. Look at the power house fashion brands like Chanel, there are knock offs everywhere but customers will always want the real deal.
    http://www.ebatotes.com