In the amorphous and dynamic world of fashion, there are no constants. From the day of the grand opening and onwards, designers are set on a daily grind with strict timetables and fierce competition. For fashion houses nationwide, the growing movement of the industry toward the “fast fashion” models of stores like Forever 21 and H&M has only added to the unpredictability and volatility of this market. Against such backdrop, manufacturers, designers, and retailers would be well advised to seek the advice of intellectual property attorneys as appropriate and inform themselves of the relevant laws that protect their creative talents or, alternatively, leave them potentially on the hook for liability. Below is a brief summary of some of the laws that may be of interest to your business.
Copyright Law Protections
Copyright law in the United States protects all original prints, patterns, unique color arrangements, and novel combinations of those elements. For the most part, however, it does not protect the designs of garments. Courts base this limitation on the notion that copyright law is meant to encourage creative and original expressions, not useful or practical (“utilitarian”) considerations.
The one exception to this rule is for “pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” In layman’s terms, this means if a portion of the clothing can be physically taken off and independently meet the elements for copyright protection, it is protectable. Alternatively, if a portion of the clothing can be identified as reflecting the designer’s artistic judgment, rather than its functional influences, it may also be protectable.
Trademark law protects brand names, symbols, labels, and logos associated with the source. Trade dress law similarly protects the packaging or appearance of products, which includes, the shape, color, and arrangement of materials in clothing. As a general rule of thumb, only elements that identify the source and origin of the apparel will typically qualify for protection under trademark law.
Unfortunately, this means that in most cases fashion designs will only be protected under trademark law if the design has acquired enough distinctiveness to be associated by consumers with a particular source. It may take years for a particular design to obtain such recognition and, as many in the business might know, by then the question of protection may well be moot.
Designers may also resort to patent law for protection. A design patent confers on the holder 15 years of exclusive rights for any new and nonobvious ornamental designs. The main consideration that keeps this option from becoming more viable is a practical one: by current standards, the USPTO will typically take one year or longer to issue a design patent from the time of filing. In the fast moving world of fashion, such luxury may not be available or worth the time and resources to most designers.
If you are in the business of fashion, you need to be mindful of more than just the competition. Your ideas, and reputation, may very well be on the line. ADLI LAW GROUP, P.C. represents fashion designers, manufacturers, and distributors. To learn more about your options and protect your business, call today for a free consultation.
© 2016 Brian Noh