What can designers do?

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Fashion designers have been fighting for years to convince lawmakers to provide fashion designs the same protections that are afforded other articles of intellectual property, such as books, music and movies. The Innovative Design Protection and Piracy Prevention Act (IDPPPA) introduced on August 5, 2010 may offer some protection if passed. Under the IDPPPA, a copy of a design would infringe if it is found to be “substantially identical” to the original work with little or no changes to set the design apart. A “fashion design” under IDPPPA would be defined as an entire article of apparel including its embellishment and elements of the original apparel that are the creative work of the original designer that are unique.

Unfortunately, until this Act or another design bill is passed, there are no bright line rules to protect fashion designers from infringement. One avenue of protection is a design patent. Under design patent law, an ornamental design may be protected if it is new and non-obvious. If a design meets these requirements, the next step is to prepare and submit drawings or photographs in a patent application to the United States Patent and Trademark Office (USPTO). The examination time can be lengthy and attorney fees associated with the application can be expensive. If the USPTO approves the application, a design patent is granted. The design is not protected while the patent is pending and once issued the patent protection of the design will be limited to specific design elements that are new only against fashion designs that are visually similar. It is for these reasons that many fashion designers do not pursue design patents.

The good news is designers can protect the artwork that they create and include in the design imprints on the fabric through current copyright law. The copyright will apply only to the artwork not the design of the dress. A copyright is the least expensive of intellectual property protection. Forms can be obtained at the U.S. Copyright Office (uscopyright.gov). The same requirements apply as would for any work of visual art. It must be your original artistic expression in a tangible medium.

Finally, another form of intellectual property is very important to designers. Trademark protection becomes important when designs are released to the public. Fashion designers often apply for trademark protection of their brand names so consumers can easily identify their designs. Think about these famous Marks that the fashion conscious can easily identify; Gucci, Kate Spade, Lily Pulitzer and the list goes on forever. New designers should start using their trademark name immediately and seek registration as soon as possible.