DECEMBER 2007 / JANUARY 2008
This season's must-have IP rights
Copyright has not always proven an effective tool for fashion designers in the US. But, explain Peter Fields and Kristen McCallion, design patents and trade marks are viable alternatives
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The global fashion design industry is a multi-billion dollar business, but it is unclear which laws govern the protection of fashion designs in the US. Articles of clothing are considered "useful articles" and therefore enjoy limited if any copyright protection, but artwork or illustrations applied to clothing may be copyrightable as works of visual art if they are conceptually or physically separable from the useful article itself. This has enabled the protection of, for example, belt buckle, novelty slipper and costume designs. However, copyright protection is often only a remote option. Design patents are one alternative, and worth considering if the design is likely to have a long shelf life. Perhaps the best option is to register elements of a product or its packaging, as well as the designer's name and logo, as trade marks at the USPTO, and record them with Customs. The most effective protection strategy will consider all of these options. |
The fashion design business is a multi-billion dollar industry that spans the globe. Fashion designers from countries including Italy, the United Kingdom, Japan, France and the United States have achieved worldwide fame for their creative, elegant and sometimes whimsical designs. For those who represent fashion designers and companies selling apparel in the US, it is sometimes unclear which laws govern the protection of fashion design works. We will address the ways in which fashion design, or elements within such designs, may be protectable by US laws governing IP rights, while also outlining the unique limitations and challenges presented to counsel in securing protection.
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