The World Intellectual Property Organization (WIPO) states that the protection of intellectual property in the fashion industry has played a key role in the success of countless brands. This industry generates approximately $2 trillion each year, and much of this income is driven by innovative new ideas. While other industries may remain relatively stagnant for decades, fashion is in a constant state of flux. New inventions like Velcro, Gore-Tex, and the zipper have drastically changed the way we dress ourselves. Specific shapes of handbags have become iconic, and even certain fabric patterns have become synonymous with legendary brands. In this world of flowing ideas, fashion companies may need to familiarize themselves with litigation strategies for protecting intellectual property in the fashion industry. An intellectual property lawyer in Chicago may be able to offer guidance on this subject. To continue the discussion, consider calling Sullivan & Carter, LLP at (929) 724-7529.

Examples of Intellectual Property in the Fashion Industry

Although it may be challenging for newer designers to secure intellectual property protections, many established brands have accomplished this goal long ago. However, the legal world does not inherently favor established brands over smaller designers. While major companies may have access to near-limitless legal resources, grassroots designers can still fight for their intellectual property rights with effective litigation strategies. In many cases, smaller companies have claimed victory over much bigger brands.

On the other hand, major fashion houses also have a clear interest in protecting the intellectual property that makes them distinct. Intellectual property may involve relatively generic and simple design elements, potentially giving brands a considerable edge over the competition while preventing the reputational damage of cheap knock-offs.

The Trademarked Check Pattern of Burberry

One of the oldest and most renowned trademarks of the fashion industry is the check pattern owned by Burberry. Founder Thomas Burberry trademarked the beige, red, black, and white pattern in 1924, although it was inspired by much older Scottish “tartan” designs. Over the past century, Burberry has employed various litigation strategies to maintain the strength of its intellectual property in the fashion industry.

The European Union Intellectual Property Help Desk highlights one case in which an Italian court ruled that a Chinese retailer could use the check pattern as long as they kept the word “Burberry” off the products. However, Burberry appealed – arguing that the pattern alone was enough to cause confusion among customers. The court considered whether the check pattern, a Scottish tartan, could serve as a trademark at all. Finally, it concluded that the use of the check pattern alone was enough to cause a likelihood of confusion – especially given its established reputation. The success of this litigation strategy shows that specific patterns can be trademarked, even if they have somewhat ancient origins that predate the brand itself. Interestingly, the oldest known example of tartan is 3,000 years old – and it was found in China.

The Trademarked “Intrecciato” Weave of Bottega Veneta

In addition to patterns, fashion houses may also trademark specific weaving methods. A clear example of this is the iconic “intrecciato” weave of Bottega Veneta, an Italian designer renowned for its leatherworking and handbags. Although it was founded in the 60s, Bottega Veneta did not trademark its weave with the United States Patent and Trademark Office (USPTO) until over five decades had passed. This was a notable victory, as the weave itself is fairly generic – consisting of interlaced strips of leather.

The Italian designer was initially rejected by the USPTO because the weave pattern was “aesthetically functional and merely ornamental.” On appeal, the USPTO conceded that while the intrecciato weave was not “inherently distinctive,” it had gained recognition among countless consumers as a “source indicator” for Bottega Veneta goods – even without the addition of a logo. This litigation strategy shows that established fashion brands may be able to trademark extremely generic design elements, as long as they are sufficiently “iconic” in the eyes of consumers. This strategy also involved shortening the trademark description of the weave on appeal, and the USPTO indicated that “extremely narrow” applications for patterns may have a higher chance of approval. Designers who are struggling with USPTO trademark applications may wish to speak with Sullivan & Carter, LLP for further guidance.

The Three Stripes of Adidas

Perhaps one of the simplest examples of intellectual property in the fashion industry is the three stripes of Adidas. To the casual observer, it might seem ridiculous to trademark something as basic as three parallel lines – and yet Adidas has managed to protect its ownership of this design element throughout many decades. With so many major fashion companies owning the rights to basic patterns, weaves, and even straight lines, smaller designers may hesitate to create anything even remotely similar to existing trademarks.

However, the University of Cincinnati Law Review highlights the fact that the USPTO does not always rule in favor of big brands like Adidas. In 2021, Adidas attempted to sue a smaller New York City luxury clothing brand called Thom Browne. Despite the fact that Thom Browne used a four-stripe logo and not a three-stripe logo, Adidas argued that these two designs were “basically the same.” The court disagreed and ruled in favor of Thom Browne. According to the University of Cincinnati Law Review, this ruling shows that smaller fashion designers can stand up to larger brands – and that “Adidas does not own stripes.” This litigation strategy involved showing the court that people who shopped for Adidas products were not likely to be Thom Browne customers, mostly due to the difference in price points. Therefore, the likelihood of confusion was minimal.

Contact Sullivan & Carter, LLP to Learn More About How To Protect Your Intellectual Property in the Fashion Industry

The fashion industry thrives on interesting new ideas, and each designer usually approaches their work in a unique way. Because of these varying circumstances, it may be necessary for designers to discuss their specific legal concerns with experienced intellectual property lawyers in Chicago. During these discussions, designers may be able to discover litigation strategies tailored to meet their unique needs. Both grassroots designers and major brands clearly have an interest in protecting intellectual property in the fashion industry. Consider contacting Sullivan & Carter, LLP at (929) 724-7529 to continue this conversation in further detail.