With Halloween just around the corner, there will soon be all sorts of creatures of the night roaming the streets. This week, families around the country are gearing up and preparing their costumes this season. However, does making your own Halloween costume this year put you at risk for violating someone else’s intellectual property rights? Realistically, it is unlikely that your homemade costume will infringe on the intellectual property rights of anyone. However, to avoid the horror of an intellectual property lawsuit, a little knowledge could go along way.
Notably, there are several areas of intellectual property protection that could apply to your homemade costume. These include patents, trademarks, and copyrights.
When people typically think of patents, most people think of highly technical or creative inventions. However, intellectual property protection for costumes can be achieved through both utility and design patents.
Utility patents protect the utility of an invention, such as the structure of something or how it works. Concerning Halloween costumes, this could come in the form of a new way of attaching an animal tail to an outfit or a method of increasing its safety. In fact, several patents revolve around improving the safety of children during Halloween. For example, U.S. Pat. No. 6,854,131 B1 discloses a costume worn by children on Halloween to increase their visibility in an attractive manner.
On-the-other-hand, design patents protect the way a costume looks, rather than how it works. Specifically, a design patent protects the ornamental design of an object, not its function.
In particular, a design patent could protect the look of a new animal costume. For example, U.S. Patent No. D 758,046 S1 protects the ornamental design for a new bear costume suit, as shown below.
Thus, while your homemade costume may infringe on an enforceable patent, it is unlikely. Especially for just one night of fright.
Copyright protection extends to original works of authorship, such as literary, dramatic, musical, and artistic works. While your homemade costume could fall under copyright protection, the Copyright Act carves out an except for “fair use.” While several factors go into deciding “fair use,” if you are purely making your costume for your family’s personal use, the “fair use” defense will likely apply.
Trademarks are used in association with goods and services to prevent consumer confusion. In particular, trademarks help prevent one company from using confusingly similar branding to that of another. Such branding could include the name, logo, images, or designs of another. Think Apple® for computers and Delta® for airlines.
With respect to your own personal Halloween costume, simply using a registered trademark on your costume for your own personal use will likely not constitute trademark infringement.
Overall, if you plan on going out this Halloween to “trick or treat” in your homemade costume, you can rest assured that you likely will not be in for a fright. However, if you plan on selling or mass producing your own Halloween costumes, I recommend that you reach out and speak with an experienced intellectual property attorney.