FASHION DESIGN PROTECTION
Under U.S. law, there is no blanket protection for fashion designs. Unlike in Europe, where it is possible to apply for a copyright for a fashion design protecting it for up to 25 years, the United States has a patchwork of different legal rights available to protect certain design elements, but typically not the complete design. This leads designers to heavily rely upon protection of brand identity in addition to whatever protection to individual designs or design elements is available.
COPYRIGHTS protect images or patterns appearing on a garment or accessory.
DESIGN PATENTS may also be available for certain non-functional ornamental elements of a design.
TRADEMARK REGISTRATION protects a label name, logo or other indication of the source or designer of the goods.
TRADE DRESS protection may also provide some measure of protection for design elements, provided those elements are so well know as to indicate the source of the design or goods.
Without 'overall' fashion design protection available under U.S. law, designers have several strategies to distinguish themselves in the marketplace. Using COPYRIGHT and DESIGN PATENTS, designers can incorporate strong elements in their designs and take the proper steps to protect those designs. This strategy can provide legal remedies against an a competitor directly copying these elements. For those designs without protectable elements, successful designers rely upon strong brand identity, which is protected through TRADEMARK REGISTRATION. And in limited circumstances, TRADE DRESS protection may be available when the overall look of the design or a particular design element creates an association of the source of the design with the relevant purchasing public.
See below for a more detailed explanation and examples of each of these important areas of protection available to protect fashion designs.
Copyright for Fashion Designs
U.S. copyright law can provide specific protections for certain elements of a fashion design. In the United States, copyright protection is limited to parts of the design that incorporate pictorial, graphic or sculptural features. Examples include embossed or printed pictures or designs on textiles. This includes artwork or images appearing on a garment or the pattern of the fabric itself. However, copyright protection is not available for the 'utilitarian' elements of a design, such as its shape or cut.
The duration of a properly registered copyright is quite long - for the life of the author plus an addition 70 years (or if a work made for hire, 95 years from its date of first publication, or for 120 years from its creation (which ever is sooner)).
The cost of protecting a copyright can range between $300 to $500 per application.
Benefits: relatively low cost, long period of protection.
Challenges: only available for certain images or visual designs. Some fashion designs may not include elements eligible for copyright protection.
New York textile manufacturer Nuance brought action in federal court against ZARA for infringement of its copyright. Nuance pattern is on the left. ZARA garment is on right.
Design Patents for Fashion Designs
Design patents are available for certain non-functional elements of a garment or accessory. These must be visual ornamental elements. Depending on the visual elements of a design, it may be possible to protect the overall look of the design from potential copying or "knockoffs". There is been a growing trend of larger firms using design patents to protect mainstay products. Given the significant cost, and length of time to obtain protection, design patents are typically used to protect a signature or main product line.
The duration of a design patent is 15 years from the date of grant by the U.S. Patent and Trademark Office.
The cost of obtaining a design patents can exceed $10,000 per application and can take anywhere from one and a half to two years, possibly longer.
Benefits: Possible protection for the overall look of a design for an extended period.
Challenges: Costly. Long period to obtain protection in an industry with typically quick design lifecycles.
Christian Dior Coat/Jacket, design patent issued 2016.
Yves Saint Laurent Clutch bag, design patent issued 2016.
Trademarks for Fashion Designs
Trademark registration does not typically protect a particular fashion design. Trademark registration protects your brand, logo, product name or slogan from copying and use by others, if another's use creates a substantial likelihood of confusion as to the source of designs or products. Trademark registration permits the designation of the source of a product or service - in this case - the designer or manufacturer. Trademark registration of a brand, name or logo, gives designers the ability to build goodwill and an association in the mind of the purchasing public. In certain circumstances, the overall look of a product may obtain TRADE DRESS protection maybe be available when the association of particular non-functional elements of a design become associated in the purchasing public's mind as a designation of the source of the product (see below).
The duration of a trademark is for as long as the mark is properly used in commerce.
The cost of obtaining a trademark registration ranges between $500 and several thousand dollars depending on the level of research completed to determine the likelihood of availability of registration.
Benefits: Protection of brand, logo, company name, slogan. No expiration if properly used. Relatively low cost.
Challenges: Doesn't protect designs themselves.
Examples of stylized trademarks.
Trade Dress for Fashion Designs
Trade dress protection, if established, can provide meaningful protection for certain design elements, and in some instances, the overall look and feel of a product. The elements subject to protection must be non-functional. Most importantly, those elements must have actually created an association between the trade dress and the source of the design or goods in the mind of the consumer, creating "secondary meaning". This typically requires significant investment of money and time in establishing awareness of 1)the existence of the designer and 2) the connection and existence of the features of the trade dress itself. Protection of trade dress is possible by filing an APPLICATION FOR REGISTRATION with the U.S. Patent and Trademark Office.
Benefits: Protection of design elements, possible overall design in some cases. No expiration of protection if properly used.
Challenges: Costs and time to establish 'secondary meaning', developing area of law with some uncertainty.
Christian Louboutin Trade Dress as filed with the U.S. Patent and Trademark Office.
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