How Intellectual Property Law Can Protect Fashion

Intellectual property law is often thought of as something that protects “practical” things like machines, software, and medicines. But it can also protect elements of fashion.

Following is a brief discussion of some of the types of intellectual property protection that might be used by a fashion brand.

Trademarks

Trademark law protects brand names and logos that are used on goods and services, to distinguish them from other goods and services. Trademark law protects consumers by helping to assure that they’re getting genuine items from sources they’ve come to trust.

Trademarks are of course hugely important for fashion brands, and designer trademarks add considerable value to goods.

For example, you can buy a six-pack of men’s plain white t-shirts from Fruit of the Loom for $18.99. You can buy a very similar single shirt from Prada for $381. That designer trademark makes up for a considerable part of the difference in perceived value to the consumer.

Copyrights

Copyright law protects works of authorship.

The shape, style, pattern, and cut of an article of clothing isn’t protected by US copyright law. Thus, cheap “knockoffs” of designer fashions can be (and often are) sold legally for much less than the originals.

(In Europe, in contrast, the law does protect fashion designs for 25 years – far longer than most fashions appear on store racks.)

The recent US Supreme Court case of Star Athletica, LLC v Varsity Brands, Inc. dealt with the question of under what circumstances aesthetic elements of “useful articles” (in this case, cheerleader uniforms) can be protected by copyright law.

The court held that the aesthetic elements must be identifiable as art if mentally separable from the article’s practical use, and must qualify as a copyrightable pictorial, graphic, or sculptural work if expressed in any medium.

The Court ruled that the designs on the uniforms were separable from the uniforms and thus could be copyrighted

Some have argued that knockoffs don’t actually hurt designers because people who buy knockoffs wouldn’t be buying the expensive originals in any case. Designers argue that the ready availability of knockoffs can devalue their originals. Others have countered that knockoffs speed up the cycle from when a design is introduced to when it saturates a market and then declines, letting designers introduce new styles faster and increasing their profits.

Copyright law does protect designs embossed or printed on fabrics.

Copyright law also protects a designer’s sketches of clothing but doesn’t prevent others from making and selling clothes that are similar to those sketches.

Patents and Design Patents

Utility patents cover the utilitarian aspects of fashion. For example, Uniqlo has a patent on its Heat Tech fabrics. Utility patents are fairly expensive and time-consuming to obtain relative to trademarks or copyrights.

Design patents, on the other hand, cover the ornamental aspects of a product and are cheaper and faster to obtain.

For example, Lululemon has many design patents on its sports bras and yoga pants and often sues to enforce them.

If you want to protect your fashion line from unfair copying, it’s important to understand the full range of intellectual property protection options available to you.