Proposed Legislation for the Protection for Fashion Design Could be The Right Fit

October 1, 2012

By Asmah Tareen

The fashion industry has long complained about the fact that, unlike European law, U.S. intellectual property law does not offer protection for those who create unique fashion design. Certainly, the prospect for profiting from one’s efforts in creating unique fashion has become grimmer in the age of technology when a designer’s new collection can be immediately photographed, copied and mass produced in China for distribution in strip malls in Minnesota before the designer has even had an opportunity to sell her originals in New York City and Milan.

That may soon start to change. On September 20, 2012, a bill entitled the Innovative Design Protection Act of 2012 (S. 3523) (IDPA) was approved by the Senate Judiciary Committee and will now be put on the Senate’s legislative calendar. IDPA is the second attempt by Senator Charles Schumer (D-NY) to introduce legislation to provide legal protection for the original design of clothing and accessories. For years, the Council for Fashion Designers of America has campaigned to earn some type of protection that might be akin to protection given to their creative counterparts in the print and music industries.  Past attempts to expand intellectual property protection to fashion have been met with criticism that such laws would open the floodgates of litigation and be bad for consumers. Critics have even argued that the lack of protection benefits designers because their high-end creative works become popular and well-known through the distribution of inexpensive copycat works made accessible to average consumers.

If passed, IDPA would provide three years of protection for fashion designs for clothing, footwear, bags and accessories that “provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior design for similar types of articles.” Design owners would be able to enforce their rights against “substantially identical” goods by providing infringers with a detailed written notice 21 days prior to filing a lawsuit. Damages would only begin accruing after the 21-day notice period. As expected, IDPA provides a host of exceptions from liability including for individuals who make one copy for personal use and for internet service providers who end up disseminating images of infringing designs.

Under the current framework of U.S. intellectual property law, there is generally no protection for fashion design although designers can sometimes rely on a smattering of limited pockets of protection.  Certain decorative elements of a garment or accessory might be protectable under copyright law as “original expressions” and novel ornamental features of an invention (such as a new design for a wrist watch) may be protectable by design patent. Also, those with established brands can rely on U.S. trademark law to stop blatant knock-offs of their label (and for a select few, trademark protection has recognized colors and patterns as brand identifiers. However, none of these laws protect the broader creative efforts for unique design. If passed in its current form, IDPA would provide fairly narrow protection along with procedural requirements that discourage litigation. However, passage of such a law would acknowledge that along with original books, posters, print ads, music, and software code, original fashion design is worthy of some protection and an opportunity to commercialize one’s efforts. It would discourage blatant copying by repeat offenders and serve as a symbolic victory for those who have long sought protection for the industry. While protection under IDPA would be far more limited than that under current copyright law, such a law may provide the fashion industry with protection that is ‘the right fit.’