What can IP valuators learn from the fashion wars?

As quoted in Forbes, Susan Scafidi, professor at Fordham Law School’s Fashion Law Institute, “… design patents exist and can protect ornamental aspects of clothing — if a company is willing to invest substantial time and money.”

Is this valid, considering the fleeting nature of fashion? The 14-year protection design patents offer may prove somewhat valuable for accessories with longer shelf lives like handbags and sunglasses, and clothing like lingerie and undergarments. Witness the current row between Spanx and Yummie Tummie, “shapewear” with designs that last beyond one or two fashion seasons. Spanx is being sued for selling knock-offs of Yummie Tummie products and on March 5 asked a judge to determine the validity of the design patents in suit.

Discerning the economic useful life of a design patent in fashion is tricky and enters not only into any valuation question, but also into decisions of how to protect the design in the first place. When developing an IP strategy, fashion executives and their advisors may be well advised to look at the possibility of trademarking design elements that uniquely distinguish their products, much as Christian Laboutin has done with the red soles.