From the haute couture showcased at New York Fashion Week last month to the ubiquitous plain white t-shirt, the fashion industry is a complex and vast realm. Fashion, which blends art with commerce, presents unique challenges in intellectual property law as designers and brands strive to protect their creations. Several theories of intellectual property are available to safeguard fashion designs: trademark protection, trade dress (a subset of trademark law), copyright, and design patents. Let’s explore each of these in more detail.
Trademark Protection: Signs and Symbols
Trademarks are the most widely utilized form of IP protection in fashion. They safeguard brand names, logos, phrases, symbols, and other distinctive signs that identify the source of goods or services.
Trade Dress Protection
Trade dress refers to a good or service’s total image or overall appearance. In fashion, trade dress can protect a design’s distinctive, non-functional elements – meaning those elements not intended for “practical use.” Non-traditional marks with elements that may be trademarked under trade dress include:
- Color Marks: While colors in the abstract cannot be registered with the USPTO, marks consisting of a color or color combination can be protected if they possess the required distinctiveness and are non-functional. Examples include Tiffany’s iconic Robin’s egg blue on product packaging and Louboutin’s red-sole shoes.
- Patterns: A pattern trademark uses the repetition of a design, symbol, letter, or combination to form a pattern on goods or packaging. Patterns are frequently found in clothing, luggage, and fashion accessories. Burberry’s iconic plaid pattern has been trademarked since 1904. More recently, Goyard’s pervasive chevron pattern was trademarked in 2020.
- Product Design: Product design or features may include the distinctive shape of a product or its packaging, provided it is non-functional and serves as a source identifier. Levi’s 501 5-pocket jeans, for example, have been protected since 1943
- Scents: Scents pose an interesting dilemma in claiming trademark protection, given the non-functional requirement for registration. Because perfume’s primary intent is to make one smell better, it is deemed functional – regardless of price. One exception? Play-Doh’s distinctive scent is protected because the scent is not being used for its own sake.
Copyright
Although clothes are considered functional “useful articles” and therefore not copyrightable, copyright law applies to other aspects of fashion, such as original artistic work. Specific works in the fashion industry are best protected by copyright:
- Textile Designs: A two or three-dimensional design that is perceptible separately from the clothing or fabric could be protected under copyright law as a picture, graphic, or sculpted work.
- Patterns: Distinct patterns and prints can be registered as copyrighted works.
- Photography: Photography, often used in fashion for marketing and advertising, is subject to copyright. Photographs taken by fashion photographers generally cannot be copied without authorization.
- Sketches: The sketches used to create fashion pieces are protected by copyright, even though the resulting clothing may lack protection.
- Jewelry: Jewelry is not considered functional; rather, it is considered more like art and sculpture.
Design Patents
A design patent protects new, original, and ornamental designs for manufactured articles. These patents safeguard the ornamental appearance of a functional item and last for fifteen years from the date of grant. Although this protection is shorter than copyright or trademark, it is generally more robust. Many brands use design patents to enforce their rights against companies that produce cheaper knockoff versions of their products. Velcro and Kevlar are two examples of items are protected by design patents.
Conclusion: That’s a Wrap…
As the fashion industry evolves, intellectual property law will face new challenges and adaptations. For those in the fashion industry, it is crucial to understand these different forms of intellectual property protection to maintain a competitive edge and safeguard creative assets.
If you are looking for guidance on the role of intellectual property law in your industry, connect with our experienced team of attorneys and learn more.
Griffith Barbee Contact Us today!
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