By Melissa Reinckens and Matt Ganas (New York)

For some time now, sports apparel as a category has been outpacing the growth of the overall retail industry. Market research company NPD Group reported a boom in the activewear sales in 2014 relative to the sluggish retail market. As recent trends in consumer demand spell dollar signs for sports apparel retailers, companies seek creative ways to secure exclusive rights in their products through intellectual property protection.

Characteristics unique to sporting wear may make it amenable to intellectual property protection in areas that traditionally short change the fashion design industry. The US patent law system, for example, provides less exclusive rights to clothing items compared with other industries because so much of the fashion industry is trend-based, ephemeral in nature and not “innovative” from a patent law perspective. And when patent law does provide an avenue for protection, it is usually through design patent protection. While a design patent can cover original ornamental or aesthetic aspects of a clothing product and can be a powerful tool, such patents are generally afforded a narrow scope of protection against virtually identical garment designs.

Sporting apparel is better positioned to bridge the gap between the fashion industry and the utility patent system. While design patents protect the way an article of manufacture looks, utility patents cover how an article is used and works. Some advantages of utility over design patents include a potentially longer term of exclusivity, the ability to claim protection for multiple embodiments of an invention and a broader scope of protection against functionally equivalent products in the marketplace. Unlike most other fashion-industry garments, activewear (e.g., yoga pants, spandex shorts, gym socks) often incorporates inventive synthetic fabric and anti-odour technologies. Such innovations may be protectable by utility patents, and thus potentially provide an added layer of exclusive benefits for retailers.

Sports apparel also presents unique opportunities for companies from a trademark protection perspective. US trademark law generally protects brand names, logos and symbols that are associated with the source of goods in commerce. The related concept of trade dress can protect the design of garments, or their packaging, to the extent that consumers associate them with the source or origin of a commercial product. Colour schemes and combinations in the fashion industry, however, often prove more difficult to protect due to the hurdles in proving that colours are not merely ornamental and actually signify source. Colours and colour combinations in sports teams uniforms tend to be the exception to this rule: because the consuming public often associates certain professional teams or university athletic programs with their team colours, there is increased potential for sporting organizations to protect and monetize their brands, inclusive of “their” colours.