Out of all of the different types of protected creativity, fashion has fallen through the cracks more than any other. Copyright, trademark, and patent all have reasons to exclude fashionable creations and ideas. Can designers protect their brain babies?

Copyright.

First, Copyright protects artistic expressions, captured in a tangible medium. Copyright will not protect an expression of a useful item, like a washing machine, microwave, or clothing. Copyright will only protect pictorial, graphic or sculptural elements of fashion, such as a prints, patterns, and textiles.

However, these things can only receive protection if the these elements can be identified separately from the useful elements of the clothing. To prove this separation, one must prove that the artistic elements are physically and conceptually separable. Physically separable means the artistic elements can be removed from the clothing and sold separately, like a pictorial print on a t-shirt, or a floral design that can be reprinted on fabric.

Conceptually separable means that the viewer or audience is typically aware of a separate concept other than just the purpose of clothing, like no one believes a Halloween costume was worn for its useful clothing purposes. A court found that Halloween costumes were separate from the simple clothing elements. Unfortunately for fashion, prom dresses and specific tailorings have failed in attempts to make the same argument. The fifth circuit also found that work uniforms for a casino were not separate from the useful elements of the uniform and not protectable.

Trademark.

Next, Trademark protects things that identify the company behind a product or service. It protects names, phrases, symbols and logos. These things, if misused, could potentially fool a consumer into making a purchase under false information. The only way to protect a fashionable item under trademark is to put the logo on it, but the protection is only for the logo, not the item. For some designers like Gucci, the logo must be printed all over the item, so the item becomes the logo, and copycats could not make the item without duplicating the logo. This almost works, but copiers could just as easily avoid the logo and completely copy the item.

Trade Dress

Trade dress protects the way a company packages and presents their products. This protection is based on the appearance of the items and its packaging will identify the company that provides the product or service. An example of trade dress is like the bottle of a 5 hour energy drink, or box that comes with a happy meal. A company can seek remedies from another that uses a product or service’s specific appearances and packaging to trick customers to making a unwanted purchase.

Like trademark, a company would have to prove that the trade dress identity has acquired secondary meaning. Secondary meaning means the public easily identifies the company by the item or product, like the products popularity contributes to the protection. However, this would provide more protection for the packaging and marketability, than one would get for the actual item.

Patent

Under patent law, a artist can receive a design patent that covers a new, non-obvious ornamental designs on functional items. This protection last 14 years, but typically takes several months at least to register the patent. Most fashion designers would argue that designs are stolen, shared, and fall out of style within a year and could possibly be undesirable by the time the protection is granted.

This long processing system is due to the fact that the Patent Office is very strict on what is accepted and protected. The term “new” means it better not look like another registered patent in the system. The term “non-obvious” means there has to be a sense of creativity, like making a dress out of coins. An example of obvious design would be like zebra print, the idea of printing animal hide colors and designs is an obvious idea, that anyone with an interest in leopard or zebra could do.

Most fashion designers should apply for the design patent, to receive 14 years of protection. The designer will then use the 14 years to establish trademark and trade dress secondary meaning for the greatest protection.

IDPA

In 2012, a bill was introduced to a Senate Committee, which included the Innovative Design Protection Act (IDPA), a.k.a. the Fashion Bill. The IDPA gives 3 years of copyright protection to fashion designs that “(i) are the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.” Since this bill was introduced, there has been very little lobby or push to revisit it again.

Some say with this new law, more designers will be encouraged to create more now that it can be protected and the exposure can be controlled. Others say that this will significantly hinder fashion, because now infringement will be an issue with true creativity. So which will happen? Will fashion designers make millions now that their rights are protected or will everyone be too busy suing each other to create anything?