Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 25, Issue 13
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Fashionably Protected – Fashion Wears Longer with IP Rights
Entrepreneurs in the fashion industry sometimes assume that intellectual property rights (IP Rights) aren’t a critical consideration. Over the years, I’ve listened to investor pitches for fashion related businesses where the entrepreneur failed to consider the potential available IP Rights.
Although there is no one-size fits all strategy when it comes to IP Rights and fashion, it is important to remember that clothes, shoes, and accessories can be protected by one or more forms of intellectual property, and each available type potentially covers different aspects of a fashion product.
For the entrepreneurial fashionista, a list of questions to consider:
- For BRANDS: Am I using unique names, logos, symbols, or features with my products? If yes, then you need to think of trademark or trade dress protection for those distinctive features. The trademark or the trade dress operates to identify the source of goods in the mind of the purchaser and is essential for building brand recognition. Trademarks can also cover sound (e.g., MGM® Lion roar, US Reg. No. 1395550), color (Christian Louboutin® red soled shoes US Reg. No. 3376197); smell (Play-Doh® US Reg. No. 5467089). Trade dress covers the visual appearance of a product or service that identifies and distinguishes its source. Trade dress can include the product’s packaging (Hershey® kisses US Reg. No. 0186828), design, color scheme, and even the shape of its container (Coca-Cola® iconic bottle shape US Reg. No. 0696147). Basically, if there is something that a purchaser will experience (see, hear, smell, etc.) that causes them to identify the source of the product or that experience, it should be considered for trademark or trade dress protection.
- For ARTISTIC DESIGNS: Are there graphic designs, prints, patterns, or other artistic elements associated with the products? If yes, then you need to think about copyright protection. While copyright generally will not protect the functional aspects or overall shape, copyright can protect surface designs or artwork that can exist independently of the product.
- For PRODUCT DESIGNS: Is the visual appearance or aesthetic of the product unique? If yes, then design protection should be considered. The design may provide protection for the shape, configuration, pattern, or ornamentation. For example, Rothy’s® women’s flats (US Des 885017).
- For PRODUCT INNOVATIONS: Is there a new technical feature or functional aspect of the product? Are new materials used? Is there a new manufacturing process? Is a new function achieved? If the answer is yes, then a utility patent should be in the mix. You’d be surprised at how many utility patents have been filed for shoes. For example, Nike® waffle sole (US Pat. No. 3793750), Nike air bladders (US Pat. No. 5257470).
- For “SECRET SAUCE”: If there is a new manufacturing process, can the process be reverse engineered? If the answer is no, then trade secret might be an option. The key to trade secret protection is that steps need to be taken to treat the information as secret and protect it from disclosure. Maintaining the trade secret can be challenging in many manufacturing contexts but it is always worth exploring and developing a strategy to maintain the secrecy when appropriate. Famous trade secrets include the Coca-Cola formula.
The savvy fashionista entrepreneur will want to consider the cost and competitive advantage for each available IP Right and settle on a strategy that combines available protections to maximize legal rights and commercial advantages. When it comes to IP Rights, a bit of forethought ensures both creative and commercial interests are safeguarded.
Want to learn more? Sign up for Cecily’s IP Bootcamp here (it’s very fashionable).
Cecily Anne O’Regan, a partner at Fishman Stewart, is based in Silicon Valley and Boston and has over thirty years of experience working with entrepreneurs and start-up companies developing patent portfolios that provide a sustainable competitive advantage. During her career she has worked on everything from surfboards to semiconductors. In addition to working as a patent attorney she also mentors young practitioners and entrepreneurs and has both taught in and guest lectured on IP related topics for several business schools. She currently hosts a small group IP Bootcamp webinar to help entrepreneurs meaningfully identify and protect their intellectual property. IP Bootcamp sign up is here. Her full bio is here.
Fishman Stewart Earns Spot in IAM Patent 1000 Rankings
Fishman Stewart PLLC is proud to once again be recognized in the IAM Patent 1000: The World’s Leading Patent Professionals – 2025. The firm advanced to a bronze-tier ranking this year, with founding partner Michael B. Stewart receiving a new silver ranking in patent litigation and continued recognition in patent prosecution. Partner Cecily O’Regan was also honored again for her excellence in patent prosecution.
The IAM Patent 1000 guide praises the firm’s commitment to safeguarding client innovation and highlights Stewart’s strategic leadership and O’Regan’s entrepreneurial approach to IP portfolio development. For more, check out the full press release here.
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