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Fashion designers look to patents to fight knockoffs

By Erin Geiger Smith

NEW YORK (Reuters) - Design companies tending to the details of fashion shows have more to think about than skirt lengths and handbag clasps - they must decide whether to seek U.S. patent protection for their looks.

Diane von Furstenberg, famous for her wrap dresses, has a design patent on a chain mail-style bag. The popular French line Celine has one on the envelope-style handbag sported by countless fashion experts at New York Fashion Week.

This summer alone, brands including Alexander Wang, Balenciaga and Tod's all were granted design patents by the U.S. Patent and Trademark Office on accessory designs, records show.

Because U.S. copyright and trademark laws often do not apply to new, logo-free designs, designers are applying for design patents to protect clothing and accessories from being targets for knock-offs, industry attorneys said.

While some brands, such as Gucci, have been obtaining design patents for decades, it is becoming more the norm for fashion companies to do the same, said intellectual property attorney Steve Nataupsky.

Design patents protect the way something looks, as opposed to more commonly known utility patents, which protect the way something is used and works.

Design patents have garnered attention in recent years due to the high-profile, high-stakes legal battles between Apple Inc and Samsung Electronics Co over smartphones and tablets.

A jury awarded Apple more than $1 billion last year, although a federal judge eventually cut the award by 40 percent and ordered a retrial on some of the damages.

While statistics are not available for all fashion-related design patents specifically, design patent applications have increased overall each year since 2009.

Because design patents are only available for creations with some originality, companies must carefully evaluate which designs, or portions of designs, deserve protection, said attorney Harley Lewin, who represents brands including Wang and von Furstenberg.

Fashion companies patent designs that they anticipate are going to be "big style setters" and "have a lifetime of at least a couple of years," said attorney Stephen Soffen, who has worked with Valentino and Versace.

Wang, for example, in 2011 was granted a patent for a "stud with grooves." He wanted a patent because he intended to use the studs on handbags and garments and felt they would be identifiable to his brand, Lewin said.

Wang also got patents for several other versions of studs, as well as a shoe with a cape flowing from the ankle strap, U.S. patent records show.

Savvy fashion brands also evaluate what not to patent, said attorney Elizabeth Ferrill.

If a design patent covers an entire design, those who copy it can generally escape liability as long as there are some differences between its product and the original.

And if part of a design, such as a complicated purse handle, is particularly expensive or complex, it is less likely a company seeking to make a cheaper version will copy that portion, Ferrill said.

As a result, companies might exclude that element from the patent application, so if someone copies the rest of the item, the brand will have leverage to stop them.

Design patents, which last 14 years, also offer an advantage to designers who want to keep their looks secret until they hit the runway, lawyers said.

Although applications are generally filed before goods are shown to the public, the U.S. patent office does not publish the applications until a patent is granted.

That publication typically happens a year or more after the filing, giving the goods time to find space on boutique shelves.

(Editing by Ellen Wulfhorst and Leslie Adler)

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