Copying is NOT the sincerest form of flattery in fashion.
Instead, I want to talk about fashion protection. Today we are lucky that shows are streamed or depicted online but just as we can get constant social media updates on new collections, so do
infringers high-street fashion designers. In 2006, high-street fashion store Zara said it could take a design from drawing board to shelf in two weeks (Source). Who knows how fast design stealers fashion week inspired retailers can produce now. While I am all for bringing fashion to the masses, there is something that does not sit well with me about designers working months to develop cutting edge hand-sewn designs and then others coming along and mass producing highly similar pieces.
So, let’s discuss available protections under intellectual property.
-I will preface this discussion by reminding that by protecting design rights and moral rights, the European Union protects designers more than the U.S. does.
Trademarks are distinctive source identifiers used in commerce. Think:
- Words (Rolex)
- Names (Ralph Lauren)
- Logos (Nike swoosh)
- Slogans (“Just do it”)
- Products or package design (Coca-cola bottle)
- Shape, scent, color (Tiffany blue)
Product design trade dress is not inherently distinctive but may acquire secondary meaning.
Copyright is an exclusive legal right assigned to creator of original works of authorship that are fixed in a tangible medium of expression. It can be argued that an original design that starts off as a sketch and finishes as an article of clothing qualifies under this definition, it could be dangerous to allow automatic protection of product design. Allowing this protection could deprive consumers of the benefits of competition. So for now this protection requires secondary meaning. The IDPPPA (U.S. bill still pending in Congress) aims to extend copyright protection to clothes.
While trademark law is useful for protecting logos, brand names, and some product packaging, clothing articles are not included in this mix.
Patents are granted to useful, novel, non-obvious, and fully disclosed inventions or processes.
Clothes usually do not qualify for design patents because they are usually not considered non-utilitarian works. This is important because functional aspects are not granted protection. (Hence why I thought Louboutin’s argument that his red outsoles conjure up an image of passion worked against him). Design patents are granted for inventions that are new, original and have ornamental design for an article of manufacture. The design patents only protect appearance of articles; protection for structural or utilitarian features is not allowed. Trying to get a design for an article of manufacture that is dictated primarily by the function of the article will be deemed to lack ornamentality and thus improper subject matter for design patents.
The problem with current design protection (in reference to articles of clothing and not designs attached to them) is that the design would have to be exceptionally different from clothing currently in use. Think Lady Gaga. I think immediately of her clothing choices and a line she said on Project Runway. The line was something that epitomizes her fashion choices…something along the lines of…when she chooses clothes she thinks more about the shape they would make if she could walk through a wall.