Written by Joseph M. DiCioccio
“Fashion is more usually a gentle progression of revisited ideas.”
- British Fashion Designer Bruce Oldfield
Perhaps no other industry is more cognizant of the need to build upon and reinterpret prior work than the fashion industry. The idea that designs must constantly change and evolve several times a year with fresh and innovative new styles is a firmly entrenched concept and results in a mind-bogglingly large amount of new fashion designs every year. Yet, almost as soon as they are created, some designs seem to find their way into counterfeit shops and online auctions where they may or may not be passed off as the original. If they are, then the issue is a relatively straightforward one of enforcing established laws against trademark infringement. However, what if the new design fully acknowledges is it not the original, but is merely a copy based on the original and does not use any protected trademark?
In Europe this issue is fairly easy to resolve; there, certain fashion designs are protected from being copied under intellectual property laws similar to our copyright protection. In the United States, as we have previously written, only certain elements can be protected under existing laws, such as the non-functional shape of a garment, the print or picture on an article of clothing (e.g., a design or logo actually printed on the fabric), or the color of a product (Christian Louboutin, the famous shoe designer, is currently embroiled in a lawsuit about this issue – the color red on shoe soles). The more fundamental protection for the cut or design of a garment available in Europe is still not an available here. This certainly isn’t because of a lack of effort. Garment industry trade groups have lent their support over the past several decades to scores of bills designed to protect fashion designs. These bills, however, have always failed. The tide may be changing. The 112th Congressional session may be the one that finally passes fashion design protection.
This session’s bill, formally numbered H.R. 2511, is entitled The Innovative Design Protection and Piracy Prevention Act (IDPPPA). Introduced on July 13th, it is almost identical to a Senate bill from the last session (the 111th). The Senate version actually came the closest of any piece of draft legislation thus far to becoming a law. It made it out of committee (which is where the vast majority of prior bills died). The current House version has several interesting protections.
- If enacted, it would extend a copyright-like protect to the new and unique designs of items such as: clothing, gloves, shoes, handbags, purses and eyeglass frames (among others);
- That protection would last for three years;
- It would protect qualifying garments from copies that are substantially identical in overall visual appearance to the original;
- It would also exempt those who re-create a single copy of these designs at home for themselves or a family member (the “Home Sewing Exception”);
- There wouldn’t be any formal registration requirement in order to obtain protection (e.g., filing a form or paying a fee); and
- In order to assert an infringement claim, the potential plaintiff would have to meet a heightened pleading requirement in order to protect against frivolous lawsuits designed to intimidate smaller competitors.
The IDPPPA represents a compromise forged during years of debate between the major trade groups representing fashion designers on the one hand (The Council of Fashion Designers of America ) and clothing manufacturers on the other (American Apparel and Footwear Association).
While it is still early in the process, both sides have made strong arguments in the past for their respective positions. Opponents of the law argue that the low level of protection currently in place actually forces the fashion industry to innovate constantly in order to create new designs to stay ahead of copycats. That is a good thing. The absence of protection ensures that designs change quickly and consumers are incentivized to keep buying current fashions because older fashions are rendered obsolete more quickly. That stimulates the economy. Proponents of the bill respond that, in Europe, where protection exists, this simply isn’t the case. New designs will come out just as quickly regardless of the level of protection – perhaps even more so. Opponents also argue that since so much of fashion is based on re-inventing old designs, protection for designs might chill innovation because designers would be scared of infringing upon another designer’s protected garment. Proponents counter that by not protecting fashion design, the United States is merely reinforcing the notion that it is not an art form of any permanence worth protecting.
If this bill makes it out of committee, we will see some interesting debate on the House floor in support of both positions. Regardless, we will keep an eye on this issue and keep you informed about any significant developments.