Free fashion.

• Author: Marshall, Ashley M.
• Position: Copyright-like protection to fashion design

INTRODUCTION PART I: CURRENT STATE OF FASHION DESIGN PROTECTION A. Trademarks B. Design Patents C. Copyrights PART II: HISTORY OF FASHION DESIGN PROTECTION LEGISLATION A. Res Ipsa Loquitur B. Design Piracy Prohibition Act PART III: THE INNOVATIVE DESIGN PROTECTION AND PIRACY PROHIBITION ACT A. Scope of the Innovative Design Protection and Piracy Prohibition Act PART IV: EFFECTS OF THE ID3PA A. Cultural Effects of the Innovative Design Protection and Piracy Prohibition Act B. Effects of the Innovative Design Protection and Piracy Prohibition Act on Innovation and Creative Minds C. Economic Effects of the Innovative Design Protection and Piracy Prohibition Act D. Re-introduction of the Innovative Design Protection and Piracy Prohibition Act as the Innovative Design Protection Act PART V: RESOLUTION: IS THE INNOVATIVE DESIGN PROTECTION AND PIRACY PROHIBITION ACT A STEP IN THE CORRECT DIRECTION A. Critics of the Innovative Design Protection and Piracy Prohibition Act 1. Piracy Paradox B. Supporters of the Innovative Design Protection and Piracy Prohibition Act C. What the Courts Have to Say About Fashion Design Protection D. Third Time's a Charm: The Great Compromise 1. Issue One: Knock-Offs 2. Issue Two: Department Stores 3. Issue Three: If It's Not Broke, Don't Fix it CONCLUSION "Fashion is a form of imitation that unites social classes and enables social equalization. The elite initiate a fashion and the mass imitate in efforts to obliterate external distinctions of class." (1)

Georg Simmel

Introduction

Our current vision of fashion is viewed as a shared art form that may be enjoyed by all social classes. Fashion encourages a melting pot of collaboration from people that are influenced by creativity. At its core, fashion is innovative and it inspires people to foster that same self-expressive conduit.

Traditionally, fashion was a privilege and greatly restricted from certain classes. Indeed, Georg Simmel has proposed that in an open class society, the high class seeks to distinguish itself by adorning distinctive forms of dress, and in turn, the middle class adopts this form of dress to identify with the superior class's status. (2) Currently, access to fashion is wide-reaching. However, recently proposed intellectual property legislation threatens access to fashion, and, if enacted, will create visible class distinctions that mimic those of our historical society.

Whether to extend copyright protection to fashion is an issue that has sparked much discussion from supporters and critics alike. The current state of fashion design protection is minimal. Generally, fashion design and accessories are not protected under copyright law. Nevertheless, many designers have been able to successfully and creatively design fashion. Designers are occasionally able to secure protection under the current trademark law and, in some very rare instances, under design patents. Many fashion designers have expressed extreme dissatisfaction with the lack of fashion design protection. Recently proposed legislation has surfaced in efforts to address designers' concerns. (3)

The Innovative Design Protection and Piracy Prevention Act (4) ("ID3PA"] will amend Title 17 of the United States Code and extend copyright-like protection to fashion design. (5) The ID3PA will provide designers with a three-year term of protection for the garment itself and the unique design elements of the garment. (6) This would allow designers to own the overall appearance of the garment (7) if the designs are unique and distinguishable from prior designs. The ID3PA will not require registration, (8) and such protection would apply only to original designs created after the enactment of the bill. Any previously created designs will fall into the public domain. The scope of infringement would only capture "substantially identical" designs, requiring a plaintiff to "plead with particularity" (9) the facts underlying their infringement claim. The "substantially identical" test is only applied to merely trivial aspects of the designs (10) and would require that designs be so similar that the infringing copy could be mistaken for the original. The penalty for false representation of an infringement action ranges from $5,000 to $10,000. (11)

I agree with the supporters of the ID3PA because the current copyright protection offered to designers is minimal at best. Nevertheless, I also hold the view that such protection is unnecessary. Ultimately, I will argue that the proposed legislation, the ID3PA, as drafted, is not the solution to the long debated issue of "whether copyright protection should be given to fashion design."

This Comment will explore the often debated issues of why fashion design has been unable to obtain protection under the American intellectual property law regime. Part I of this comment will discuss the current state of fashion law protection. Part II will discuss the history of fashion law legislation; the goal is to provide a better idea of the precedent set by previously proposed fashion design legislation. Part Ill will return to the ID3PA and discuss more in-depth the logistics of the bill. This Section will answer the question, What is the ID3PA? Moreover, a discussion of the pros and cons of the ID3PA, and the theories behind the proposed legislation will further provide clarity as to the points made in Part II regarding past fashion design legislation. Next, Part IV will discuss in detail the effects of the ID3PA on various institutions including culture, creativity, innovation, and economics. Finally, Part V will discuss persuasively-argued points from both supporters and critics of the ID3PA alike, and will provide a summary of the ultimate issue to be decided-the fate of the ID3PA. In discussing whether the ID3PA is really a step in the right direction for America, I will question if the ID3PA is the solution. Evaluating what should become of the ID3PA, I will propose a solution to the fictitious need for copyright protection of fashion design.

PART I: CURRENT STATE OF FASHION DESIGN PROTECTION

Fashion design protection under current intellectual property law is limited at best. It is no secret that fashion designers do not benefit from the same level of protection as their artistic peers in the world of visual arts, music, film, and dance. (12) Fortunately, there is a viable explanation for the difference. Fashion design is a much more complex type of property than visual arts, music, film, or dance. Fashion design is fluid, and exists in many different shapes and forms. A heavily debated topic, fashion design has yet to find a stable home within traditional intellectual property law.

1. Trademarks

   The most notable form of protection offered to fashion design is trademark protection. The Lanham Act (13) provides protection to owners of valid trademarks and equips trademark owners with a cause of action for trademark infringement. (14) In order to state a claim under trademark law, a plaintiff must show three things: first, ownership of a valid registered trademark; (15) second, usage of the trademark in commerce without consent of the owner; (16) and lastly, evidence that such mark is identical or confusingly similar to that of the trademark owner. (17) This form of protection is seen most with designer handbags and designer logos.

   In 2004, famous handbag designer Louis Vuitton sued Dooney & Burke for trademark infringement in the Southern District of New York. (18) The trial court denied Louis Vuitton's motion for preliminary injunction. In 2006, the Second Circuit Court of Appeals (19) reversed, holding that likelihood of confusion could be proven between Louis Vuitton's "Multicolore" mark and the pattern of Dooney & Burke's "It-Bag." (20)

   Like Louis Vuitton, many designers have attempted to make their products and designs protectable by marking the entire piece with a trademark. Some have been successful and others are not. Even if a designer is able to prevail in a trademark infringement cause of action, only the trademark itself is protectable--not the entire design. The bottom line is that while trademark law is useful to protect brand names and logos, it generally does not protect the design itself. The Supreme Court has refused to extend trade dress and trademark protection to apparel designs. While trademark law is often used in attempts to prevent knock-off reproductions, it is just not a feasible and comprehensive option for fashion designers.

   Most recently, in 2011, French footwear designer Christian Louboutin ("Louboutin") brought a trademark infringement suit against Yves Saint Laurent ("YSL") for producing shoes with the "lacquered red soles." (21) This case is distinguishable from the 2006 Louis Vuitton v. Dooney & Burke litigation, (22) and is arguably one of the most notable fashion law cases of 2011. The United States District Court denied Louboutin's motion for preliminary injunction. (23) In arriving at this decision, the court noted Louboutin's prior admissions that he chose the red sole not purely as a source identifier, but also to give his shoes "engaging and flirtatious" energy. (24) Further, the court opined that Louboutin had no cause of action for trademark infringement under the Lanham Act, (25) and doubted whether a color should be allowed trademark protection in the fashion industry. In an attempt to clarify its decision that color in the fashion world is unique, aesthetically functional, and not solely as a source identifier, the court proposed a hypothetical comparing Louboutin's exclusive use of the color red on shoe soles to Picassos' attempt to gain exclusive use of his "color of melancholy" during his Blue Period. (26) In coming to its decision, the court relied on one of YSL's arguments, which stated that not only were Louboutin's "lacquered red soles" unprotectable under trademark law, but they were also not original. (27) YSL went on to attack the originality of Louboutin's use of...