On August 5, 2010, Democratic Senator Charles Schumer and several notable cosponsors, including four Republicans, introduced a bill to extend intellectual property protection to fashion designs for a three-year term. The bill, “Innovative Design Protection and Piracy Prevention Act”, S. 3728, currently applies to articles of clothing, handbags, and eyeglasses frames.
Federal law does not currently protect fashion designs–the design that geographically sets forth the shape, style, cut, and dimensions for converting fabric into a finished dress or other clothing garment. This is distinguished from the design that is imprinted on a fabric, which in the completed dress may appear repeatedly throughout the dress fabric–designs which are copyrightable. The lack of protection for fashion design is due to its status as a “useful article”, in that fashion design is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.
In support of S. 3728, Republican Senator Orrin Hatch stated, ” … [O]riginal designs are copied and the apparel is manufactured in countries with cheap labor …. [t]he garments are then shipped to the U.S. directly to compete with the garments of the original designer, sometimes before the originals have even hit the market. As a result, the U.S. apparel industry continues to lose billions of dollars to counterfeiting each year.”
Supporters of the bill believe that, without protection for fashion design, fashion designers are not incentivized to create designs, because copyists will free-ride on their efforts, thereby stifling innovation. Opponents of the bill and commentators point out that, despite the lack of fashion design protection, competition, innovation, and investment are strong in the fashion design industry. They argue that copying does not deter innovation in the fashion industry because such copying is not very harmful to originators. Instead, it actually promotes innovation and benefits originators.
Similar measures have been introduced in Congress in the past, to no avail. In this instance, the existence of bipartisan support leaves its supporters hopeful.
Fashion designers are not without recourse under current law. For example, trademarks used as an indication of source by apparel and accessory firms are often used as a means to stop counterfeiters. Also, in certain limited instances, trade-dress protection is available. Please contact us for further information about how fashion designers can protect themselves both now and after the potential passage of S. 3728.