IP: Is the U.S. fashionably late to the party?

U.S. trademark laws lag behind the E.U.’s protections

Contrary to popular opinion, fashion is not just about branding. Believe it or not, the style, quality and originality of the product are actually quite important too. Is it not therefore important that we should have laws to protect a product’s uniqueness that are comparable to the trademark laws that protect the brand?

There have been several attempts in the last few years to extend U.S. copyright to cover fashion designs, including the proposed Design Piracy Prohibition Act in 2006 and the Innovative Design Protection and Piracy Prevention Act in 2010, but so far these have not been successful. Ingenious intellectual property lawyers in the U.S. have therefore had to rely on other laws, such as copyright provisions, which were created to protect sculpture rather than garments.

However, fashion feuds are not limited to high-end design versus mass-market. The industry is much more layered than that. Original designs are also produced by mid-market stores and it is here that design rights are of vital importance. One chain store may employ an in-house design team to produce a new range of clothing (or watches or handbags or jewelry) and find that their designs are being copied, rebadged and sold by a competing chain that does not have to pay designers and so is able to undercut the originator. Here, the battleground is for the same consumers’ dollars.

Critics of proposals to reform U.S. law point out that the fashion industry has always relied on imitation and inspiration and that design protection would cripple the industry. That has not been Europe’s experience. Protecting that innovative spark only incentivizes creativity since lazy copying is no longer acceptable.

Contributing Author

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Robert Lands

Robert Lands is head of intellectual property and media at Central London law firm, Finers Stephens Innocent LLP. He specializes in intellectual property and related...

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