Teacup

Recently, I met with an intellectual property trademarking agency who explained to me how important it is to trademark your product and your brand in order to protect your IP. However, in fashion, I’ve learnt that although you can trademark your brand name and all that is associated with it, it is nearly impossible to trademark the designs of your garments themselves. If artists, musicians, writers, photographers, business owners and even software coders can all get copyright protection, why then can’t fashion designers? And what benefits do you get by having no protection of your IP?

What is Intellectual Property (IP)?

If you’re like me, you would have little to no knowledge of the legalities that are actually involved in fashion. So first, lets look at what IP actually is.

The Intellectual Property Office of New Zealand (IPONZ) defines IP as “an umbrella term used for human innovations and creativity that are capable of being protected under national law and international treaties”.

This means that and invention, asset or idea that you create can be copyrighted to prevent competitors from copying or closely imitating your products, technical processes, or business services so you. It gives you legal protection and exclusive rights for your creative work to create and distribute copies, create similar works, and perform or display the work in public.

What protection do designers get?

In fashion, copyright law will not protect the “reverse engineering” of a garment; that is, the clothing pattern itself for the garment. However, designers can use trademark law to protect their logos, brand names, as well as any distinctive features of their product, says Dr. Tabrez Ahmad.

For example, “Bettina Liano has registered the distinctive pocket stitching on her garments as a trade mark, while British fashion house Burberry holds trade mark rights in both the trade mark “Burberry” and the Burberry check pattern. Burberry has enforced its trade marks in many jurisdictions against counterfeits including a recent action in the US District Court.”

Designers can also copyright “one-off fashion designs, such as an haute couture item and jewellery items if they can be shown to be ‘works of artistic craftsmanship’ that cannot be replicated”. Designs cannot be copyrighted however, if “it is intended to be mass-produced, make multiple copies of the items or use the items on a commercial scale”.

Why doesn’t the fashion industry have IP protection?

Author Elizabeth Mills for the Shidler Journal of Law, Commerce & Technology says “intellectual property distinguishes a protected work’s aesthetic value from its functionality. In so doing, intellectual property law prevents fashion designers from asserting their rights over entire garments.”

“Clothing and accessory designs have long been categorised as useful articles, which serve a functional purpose rather than artistic,” says Daliah Saper from Saper Law Offices. “Because of this functionality, a clothing or accessory pattern can’t be copyrighted, even if it has a unique shape, cut, or design. Only the features that can be identified separately and can exist independently of the utilitarian aspects of the article can be copyrighted.”

Thus, design patents, like copyright, do not protect tailoring because the aesthetic and useful value of tailoring are legally indistinguishable.

Design Piracy Prohibition Act

To get around the copyright law, Design Piracy Prohibition Act was introduced in 2007 which offers designers copyright protection for 3 years for the appearance of an article of apparel as well as its ornamentation and prevent others from copying and disseminating their designs without consent, says Legislative Attorney Brian Yeh. In order to be protected though, design registrations must be made within 3 months of making the design available to the public.

Under this Act, the designer may claim remedies against the infringer in damages (maximum of $250,000 or $5 per copy – which ever is greater, or the infringers profits on the product), attorneys fees of the winning party, injunction or destruction of infringing materials.

However, Johanna Blakley, Deputy Director of the Norman Lear Center, says that the Design Piracy Prohibition Act is there, many designers have chosen not to use it.

Designers “don’t register their garments generally, and there’s not a lot of litigation. It turns out it’s because the novelty standard is too low. A person can come in and take somebody else’s gown, cut off three inches from the bottom, go to the E.U. and register it as a new, original design. So that does not stop the knock-off artists. If you look at the registry actually, a lot of the registered things in the E.R. are Nike T-shirts that are almost identical to one another”.

Can fashion survive in an open source environment?

“I don’t think the legislation is going anywhere,” says Johanna. “It is so hard to tell the difference between a pirated design and something that’s just part of a global trend. Who owns a look? It takes lots of lawyers and lots of court time to answer that question designers have decided that would be way too expensive”.

Although some designers are concerned about the risks of knock-offs and counterfeit goods, as Tom Ford puts it: it’s a very different demographic. “We found after much research that, the counterfeit customer was not our customer.”

“A Knock-off is never the same as an original high-end design, at least in terms of the materials, they’re always made of cheaper materials. But even sometimes a cheaper version can actually have some charming aspects, can breathe a little extra life into a dying trend. There’s lots of virtues of copying. One that a lot of cultural critics have pointed to is that we now have a much broader palette of design choices to choose from than we ever have before. And this is mainly because of the fast fashion industry. And this is a good thing. We need lots of options.”

Outside of fashion, there are also many other industries that have no copyright protection and yet are booming: food industry (can’t copyright the look of a dish or a recipe), automobiles (can’t copyright the sculptural design), magic tricks, hair styles, comedy routines, tattoos, firework displays, perfume smells, open source software (who decided they don’t want copyright protection), and more.

Given the nature of the fashion industry, having no copyright protection has many benefits that are often overlooked. Fashion designers have the freedom to draw their inspiration where ever they like and explore their creativity without boundaries. It pushes them come up with new designs that are difficult to copy forcing then to be innovative. And, it gives us, the consumers, a wider basket to choose from when it comes to style, cut, colour, price, status and design.

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What do you think?

Do you think by having no copyright protection on fashion design, we are helping the industry evolve? Or do we give the designer no power to protect their creative ideas from imitations?

This entry was posted on Thursday, July 29th, 2010 at 9:42 PM and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.