When a Senate committee voted for the Fashion Bill, to proceed to Senate floor without amendments, there was hope in Fashion Design. The bill covers copyright protection to fashion designs that are made through designers own creative effort, and offer a unique, non-trivial, distinguishable and non-utilitarian variation over past designs.
Supporters of the Bill, including many fashion houses, say it would protect fashion designers by closing prevailing gaps in U.S copyright law. It would ban copying the appearance of articles of clothing, including beautification, original elements and original procedure of both original and non-original products. But the opponents claim that the law would stop creativity of new elements, increase independent fashion designers’ legal costs, and increase cost of clothing and accessories for all consumers. They also proposed that fashion designers are well protected under existing U.S intellectual property laws. But the proposed laws offer an opportunity to change existing laws relating to protection of fashion designs.
The copyright law safeguards original patterns, prints, color arrangements and novel mixing of elements used on accessories and apparel. But the courts have recognized that the test for separability can be met when a physical or conceptual separability is shown. A design element is deemed physically separable if it can be removed from apparel and sold alone such as a belt buckle.
A design patent offers fourteen years of industrial design rights for new and nonobvious decorative designs of items. But the examination process for design patents by USPTO may take over a year. This would often surpass the life expectancy of many designs in this world of fashion. The Trademark Act in U.S does not offer protection for fashion designs. Instead, the trademark Act protects logos, brand names, symbols, designs and other elements of apparel and elements. It also protects packaging, design or appearance of accessories and apparel. For instance, the brand name, logo hang tag and unique pocket edging on a pair of jeans can be recorded as protectable trademarks. A unique shape of a dress can also be registered as protectable trade dress.
What should Fashion Designers Do?
Based on the current U.S laws, fashions designers need to maximize their protection by
a. Registering copyrights for their original prints and patterns, and other unique combinations of elements.
b. Apply for a design patent for nonobvious and new fashion designs.
c. Register trademark and trade dress protection for logos, names, designs, packaging and other element accessories.
If the Fashion Bill is passed into law, designers would be advised to continue chasing the earlier copyright and trademark registrations, however, they would have to reevaluate pursuing design patents established on cost reflections and whether the beneficial life of each relevant design is estimated to last more than the 3 years of copyright protection given by the Fashion Bill.