Originally posted 2014-06-17 11:00:40.

By Diana Chan | amdlawgroup.com

Unique is the New Black

In fashion, designs are continuously changing yet also seem to overlap among higher-end and lower-end brands. Designers should be wary when launching a design for their brand because of the risk that someone else may create a knockoff or variation of their original design.  Because of this, designers must create something that is signature and innovative to the brand and that will to be protected under intellectual property laws.

Under copyright law, the owner of a protected copyright has the right to exclude others from reproducing and preparing derivative works.  In other words, only the copyright owner may create a variation of an original work, unless they have authorized someone else to do so.  Designers of printed textile may protect their original prints under copyright laws, though fashion designs generally cannot be protected because of the utilitarian features of the entire design.  Being able to add and identify specific features of a design that can be separated from the utilitarian or functional use of a product may increase the chances of falling under the scope of copyright protection.  Creating original and unique prints and applying them to the overall design can protect brands and prevents others from copying or creating derivative works based on the original textile print.

Since copyright protection is limited in its scope of protection, designers may look to registering a trademark or trade dress to protect their designs.  Many brands have a trademark or trade dress as part of its signature design, which is certainly helpful as it protects the mark and allows the owner of the mark to sue or prevent others from infringing.  Federally registering marks through the USPTO provides trademark owners with substantial rights.  For example, owners of federally registered marks are able to litigate against others who have infringed on their rights in federal court.  Owners of federally registered marks can also recover profits, damages, and other costs associated with infringement.  In 2012, the Court of Appeals for the Second Circuit found that Christian Louboutin, famous for red sole on its shoes, had a valid trademark in the red sole as long as it contrasted with the color of the upper part of the shoe.  Although Louboutin was not able to prevent Yves Saint Laurent from using the red sole with a monochrome red shoe, trademarking the red sole design provided Louboutin with substantial protection of a signature design that is a symbol of its brand.  Like copyrights, having a trademark also has its limitations, however, because generally secondary meaning must be acquired to register a trade dress, which could take several years especially for new designers.

Design patents protect the ornamental appearance of a product. In order to receive a design patent, the feature must be ornamental, novel, and nonobvious. Since fashion is constantly changing, one of the downsides of design patents is that issuance could take months and by the time a design patent is issued, the design may not be relevant. On the other hand, if a designer is creating a signature design or designs that will last for several months or years, obtaining a design patent may be beneficial in the long run in building a brand and maintaining a unique design identifiable to the brand.

Keeping in mind these avenues for protection of designs and the limitations of each, it is important that designers protect their designs under copyright, trademark, and patent laws.  Original and creative designs that are identifiable to a brand deserve protection under intellectual property laws.  By protecting designs through all the laws available, companies and designers are protecting the face of the brand and the effort that goes into creating something unique that identifies the brand and separates it from others.

Sources:
http://www.nytimes.com/2012/09/06/nyregion/court-rules-louboutin-can-enforce-a-trademark-on-its-red-outsoles.html?_r=0
http://www.forbes.com/sites/oliverherzfeld/2013/01/03/protecting-fashion-designs/
http://www.bitlaw.com/trademark/federal.html
http:// www.ncjolt.org/sites/default/files/Ferrill_Tanhehco_251_300_forweb.pdf

Image Credit: http://29.media.tumblr.com/tumblr_lj3agvmnpi1qicy38o1_500.png

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