Fashion Design & Intellectual Property
| Jurisdiction | United States,Federal |
| Pages | 0006 |
| Publication year | 2014 |
| Citation | Vol. 55 No. 1 Pg. 0006 |
| Date | 01 January 2014 |
While fashion is a $250 billion business in the US, our intellectual property laws are ill-fitted to this fast-moving industry, and offer less protection for innovators and pace-setters than laws in Europe and Japan.
Leigh Willey
Design is a constant challenge to balance comfort with luxe, the practical with the desirable. -Donna Karan, Fashion Designer
I. INTRODUCTION
There is a pivotal scene in the movie The Devil Wears Prada during which Miranda Priestly (played brilliantly by Meryl Streep), an editor at a fashion magazine, chastises her young intern, Andy Sachs, for dismissing the economic and cultural importance of the fashion industry. The scene unfolds as follows:
[Miranda and some assistants are deciding between two similar belts for an outfit. Andy sniggers because she thinks they look exactly the same.]
Miranda Priestly: Something funny?
Andy Sachs: No. No, no. Nothing's... You know, it's just that both those belts look exactly the same to me. You know, I'm still learning about all this stuff and, uh...
Miranda Priestly: "This... stuff?" Oh. Okay. I see. You think this has nothing to do with you. You go to your closet and you select... I don't know... that lumpy blue sweater, for instance because you're trying to tell the world that you take yourself too seriously to care about what you put on your back. But what you don't know is that that sweater is not just blue. It's not turquoise. It's not lapis. It's actually cerulean. And you're also blithely unaware of the fact that in 2002, Oscar de la Renta did a collection of cerulean gowns. And then I think it was Yves Saint Laurent... wasn't it? - who showed cerulean military jackets? I think we need a jacket here. And then cerulean quickly showed up in the collections of eight different designers.
And then it, uh, filtered down through the department stores and then trickled on down into some tragic Casual Comer where you, no doubt, fished it out of some clearance bin. However, that blue represents millions of dollars and countless jobs and it's sort of comical how you think that you've made a choice that exempts you from the fashion industry when, in fact, you're wearing the sweater that was selected for you by the people in this room from a pile of stuff.
At a global level, the fashion industry is estimated to be worth $1.5 trillion dollars, employing millions of people.[1] In the United States, fashion industry revenue topped $250 billion in 2013, and the industry employed more than four million workers.[2]New York City alone is home to more than 800 fashion companies, more than double the number in Paris, France.[3]The industry employs almost 200,000 people in New York, generating nearly $ 10 billion in total wages and $811 million in annual tax revenues for the city.[4] In addition, twice per year, America's most pre-eminent designers unveil their latest collections at Fashion Week in New York, generating approximately $782 million in direct visitor spending.[5]
Despite the documented economic importance of the fashion industry, designers in the United States do not enjoy the same robust intellectual property protection granted to other artists, such as authors and musicians. Copyists are free to copy a designer's creations directly from the runway without facing any legal consequences. This practice is often economically devastating, especially to new designers, many of whom simply do not have the resources to combat the copyists either in the marketplace or in the courtroom. Creativity and innovation is therefore stifled, and in turn, consumers are left with fewer choices. Without a comprehensive system for protection, moreover, the United States risks losing fashion industry jobs to Europe and Japan, both of which offer much tougher intellectual property laws to protect fashion designers.[6]
The terms "counterfeit" and "knockoff" are often used interchangeably when discussing the fashion industry. They are, however, two distinct concepts. A counterfeit is an unauthorized, close copy of the original, made with intent to deceive consumers into thinking that it is, in fact, an original.[7] Counterfeits are illegal and manufacturing or selling them can result in having to pay substantial damages or fines and even criminal sanctions.[8] [9]Counterfeit goods are undoubtedly a legitimate problem for the fashion industry. More recently, however, the focus has turned to fighting against knockoffs, especially in the United States where fashion designers have virtually no intellectual property protection for their creations.
A knockoff is a close copy of the original design.[10]Even though a knockoff mimics the original design, there are subtle differences. Unlike a counterfeit item, the knockoff is not meant to pass as the original.[11] Furthermore, much to the dismay of the fashion industry, knockoffs are perfectly legal in the United States.[12] Several years ago New York-based design team Proenza Schouler collaborated with Target on a 65-piece collection. A short time later, without Proenza Schouler's permission, Target began selling its Mossimo messenger bag for $34.95. The bag was an obvious knockoff of Proenza Schouler's coveted PS1 bag, which retailed for $1,995. Despite the obvious similarities, legally there was nothing Proenza Schouler could do to prevent Target from selling its knockoff messenger bags. (See Fig. 1).
The problem with knockoffs is not a new phenomenon, but the advent of cell phones and social media like Twitter and Instagram, in which users can take and instantaneously share pictures with their entire network of followers, makes knocking off designers that much easier; Knockoffs have even spawned their own subset of the fashion industry, known as fast fashion.[13]It used to be that a designer would show his or her collection during Fashion Week and, unless you were one of a privileged few sitting in the audience, the general consumer would have to wait at least a couple of days for industry trade publications like Women's Wear Daily to publish photos of the designs. In today's world, however, fashion bloggers have replaced editors, stylists, and the designers' clients in the front row at fashion shows. Bloggers snap pictures (often using only their cell phones) of the looks as they come down the runway and immediately post the images online.[14] From there, mega-retailers like Forever 21, Urban Outfitters, and NastyGal[15] quickly manufacture and flood the marketplace with cheap imitations of the designs; hence the term "fast fashion."[16] The entire fast fashion process is often accomplished within mere weeks of the runway show. Thus, by the time the fashion designers' original looks are shipped to their intended retailers (e.g., Barney's, Saks Fifth Avenue), fast fashion's knockoffs have been on store shelves for months; by then consumers have grown tired of the look and are in search of something new[17]
K EASHION DESIGN AND ILS. IVTELLECTUAL PROPERTY LAW
Unlike Europe and some parts of Asia, fashion designers in the United States do not have suigeneris protection for their designs. Early attempts at protecting fashion designs were struck down by the United States Supreme Court.[18] More recent attempts at passing legislation to amend the Copyright laws so they apply to fashion design have stalled, but proponents of these new laws in Congress and in the industry continue to advocate for its passage. In the meantime, fashion designers are left with having to navigate the existing laws, often relying on a combination of the existing forms of intellectual property to protect their work.
A Design Patents: Attractive to Some, but not Ail Fashion Designers
In the past few years, there has been a steady increase in the number of design patents issued to fashion companies seeking to protect their designs from knockoffs, with good reason.[19]A design patent offers 14 years of protection for new and non-obvious ornamental designs of functional items.[20]The subject matter of a design patent may relate to article's shape or surface ornamentation, (e.g., studs) applied to the article, or both.[21] A design patent is a particularly attractive form of intellectual property protection to some fashion designers because it protects the design - the way an article looks, not its function - the way it works or is used.
It usually takes between 18 months and two years after an application is filed for the PTO to issue a design patent, and protection does not begin until the patent is issued.[22]As a result, a design patent is not always the most attractive form of protection to fashion designers, who work in an industry where trends come and go on almost a monthly basis. Often the designs have been sold and phased out of the fashion designer's line well before the patent is even issued.[23]However, for certain items, such as shoes or hand bags that are going to remain a staple in a designer's collections for years, design patents offer a practical...
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