Lica Colwell: Spring Fashion Season

 

It’s March, and in Charleston thoughts turn to longer days, springbreak and, relatively recently, fashion. The tents go up in MarionSquare mid-month for fashion fans to enjoy a week of shows featuring new designs and clothes from local stores. It is a lot of fun and,actually, very big business, considering that the fashion industry inthe United States alone employs more than 4-million Americans andaccounts for $350 billion in annual retail sales.

But fashion design is also art, and as an intellectual property lawyerwho works to help clients protect rights in artistic works, I have beenwatching the development of a law to protect the original designs ofthree-dimensional clothing and footwear in the United States.Unfortunately, the current system of intellectual property laws –consisting of patent, copyright and trademark – does not provide a onesolution for designers to protect their work from being blatantlycopied.

Rumblings about coming up with a new system have been ongoing in thefashion industry for a while, and, since 2006, several bills have beenproposed. It wasn’t until last fall, however, that a piece oflegislation got the support of the American Apparel & FootwearAssociation and the Council of Fashion Designers of America, twonational trade groups influential in the American fashion industry.

In October 2012, the leadership of these associations called theInnovative Design Protection Act (IDPA, S. 3523) introduced by Sen.Charles E. Schumer, D-N.Y., a “practical and workable approach to thereal but narrow issue of ‘design piracy,’” which is understood to be the primary concern driving development of the law. The IDPA, also calledthe “Fashion Bill,” was placed on the Senate legislative calendarDecember 20. It was reported by Committee but unfortunately died at theend of the last session. It won the support of the AAFA and the CFDAwith its specific focus on three key sets of provisions:

First and primarily, the bill proposed three years of protection tofashion designs that are truly new and original; i.e., those that havenever been seen before. This protection would extend to the entirearticle of clothing but would not cover any individual part of a garment like the design of a sleeve or a pocket. It prohibited the creation of“substantially identical” copies of protected designs or anything closeenough to likely be mistaken for the original.

Second, the Fashion Bill contained a “heightened pleading standard” orcertain required content for filings to try to cut back on frivolouslawsuits. More simply stated, a designer who wants to claim piracy – or“infringement” – of a design would be required to plead facts in thecomplaint demonstrating that the design was protected, how it had beeninfringed and how the design was available for the defendant to see orhave knowledge of it for the copying. And, in addition:

 

The bill clarified that the facts of availability should bespecific enough to give rise to a “reasonable inference” that thedefendant had access to the design.

Since this bill wasn’t introduced until September 20, 2012, nearthe end of the Congressional session, expectations for it to get passedwere pretty low. Nonetheless, industry observers were invigorated by the introduction and, in large part, more satisfied with this bill’s textthan any previous bill.

So. Is there anything a designer can do until the Fashion Bill passes?

Currently, a designer can register copyrights for original prints andpatterns, unique color arrangements and novel combinations of elementsused on an article of clothing or footwear as well as any protectabledesign elements that can be separated, either physically orconceptually, from the utilitarian aspect; i.e., any useful andfunctional aspect of the article. A designer can also file a patent fornew and non-obvious ornamental designs of functional items. Finally, adesigner can federally register for trademark and/or trade dressprotection of a brand name, logo, packaging and any other element thatidentifies the garment or article as belonging to a particulardesigner’s house or line.

About Angelica (Lica) M. Colwell