Intellectual Property Protection for Fashion Designs

Intellectual Property Protection for Fashion Designs

So far, the U.S. laws offer little IP protection to fashion designers. As a result, fashion designs are copied freely by many. The U.S. copyright law does not extend protection to the overall design of clothing (the "useful" articles are not protected). There is a limited exception for certain elements of a useful article, which are physically separable from the article itself (such as images that appear on the front of T-shirts, distinctive fabric designs, features of buckles).

Trademark law protects the designer's use of logos, symbols on fashion items and names (for example, Louis Vuitton's "LV" monogram or Lacoste's alligator logo). However, trademark law protection only extends to these particular elements, and not to the clothing's overall design.

Trade dress law protects the product's overall look and feel, so theoretically, could be used to protect the overall clothing design. However, in 2000, the United States Supreme Court severely limited the extent of protection under trade dress law. In Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000) [enhanced version available to subscribers / unenhanced version available from lexisONE Free Case Law], the Court held that the trade dress protection is only available to those who can prove that the design "has acquired distinctiveness by the consuming public or has developed secondary meaning", - in other words, that an average consumer would identify the designer just by looking at particular fashion design of the clothes. This is difficult to show, and therefore, the trade dress protection has not be effective in protecting the IP rights of the designers either.

Patent law provides for design patents, but the designs have to be "novel" and "non-obvious", which is a high bar to meet. Also, the expense of patent prosecution and the time delays involved in the patent review process often make this an unlikely choice.

The fashion industry has been fighting for decades to amend the copyright law to obtain the necessary protection. In fact, approximately 80 amendments have been proposed since 1910, but none have been successful. In the European Union, designers were given protection in 2002, when the EU adopted Council Regulation (EC) No. 6/2002 that gives a 3-year protection for unregistered designs and up to 25 years of protection for registered designs.

The current proposal, the Design Piracy Prohibition Act (H.R. 2196) calls for designers to register their designs within six months of creation. The bill, if passed, would extend copyright law protection to clothing, including underwear, gloves, shoes, coats, as well as accessories, such as handbags, belts and eyeglass frames. The protection would be limited to three years, which in case of fashion designs, should be enough to cover the latest fashion trends. However, the fate of this bill does not look very optimistic. It has been in the House Committee on the Judiciary since April 30, 2009 and no action has yet been taken.

The Senate has its own version of the bill, called Innovative Design Protection and Piracy Prevention Act (S.3728), introduced by NY Senator Schumer. On December 6, 2010, it was placed on the Senate Legislative Calendar. Further fate of this bill is also unclear.

It remains to be seen whether either of these bills will ever turn into law.

Read more commentary from Arina Shulga on the legal aspects of operating new and growing businesses at Business Law Post.

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