DESIGN PIRACY 101

Subscribe | Winter 2007 FILTERED + legal+ NEWS

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DESIGN PIRACY 101

This summer Washington witnessed a march on Capitol Hill of a different kind: A cry to defend fashion against knockoffs. Not on the runway aisle, but in front of the microphones of U.S. House Subcomittee on Courts, the Internet, and Intellectual Property CFDA members, and designers like Jeffery Banks professed the benefits on H.R. 5055, the “Design Piracy Prohibition Act” The Design Piracy Act as proposed, HR 5055 would amend Chapter 13 of the Copyright Act to provide copyright protection for fashion designs.

The support for the Act has reached an up tempo thanks to Harper’sBazaar and eBay’s media initiatives but this month the billcomes before the House of Representative for a final “in” or“out” to makethis bill into law.

WhatDoesit Mean forFashion?

If enacted, HR 5055would significantly affect the ability of designers to protecttheir designs. Itwill also have a strong ripple effect in the fashion industrybecause right before our eyes the debate of whetheroriginality in fashion designs is too insubstantial forcopyright law to distinguish protected elements fromnon-protected elements will besettled.

Under current law, there is no copyright protection for fashion designs because clothing is considered a "useful article" rather than a work of art subject to copyright protection. Useful articles are generally protected under patent law. Due the difficulties in asserting usefulness for article of clothing, most clothing can not be protect under patent law and designers are left to their own vices definitely benefit from fashion’s quick changing trends.

Highlights of the Design Piracy Prohibition Act

TheAct would extend protection to "the appearance as a whole ofan article of apparel, including its ornamentation," with"apparel" defined to include "men's, women's, or children'sclothing, including undergarments, outerwear, gloves,footwear, andheadgear;" "handbags, purses, and tote bags;" belts, andeyeglassframes.

In order to receive the three-year term of protection, the designer would be required to register with the U.S. Copyright Office within three months of going public with the design.

	HR 5055 would extend 3 years of copyright protection for fashion designs
	HR 5055 would provide 3 years of copyright protection for registered fashion designs.
	It would also establish damages for infringing on fashion designs as the greater of either $250,000 or $5 per copy.

Protection Tools You Can Use Now
If the law is not enacted, it does not mean you are at a loss in the fight against knockoffs or more delicate unauthorized “borrowing.” Here are some general tips in the protection of your designs:

	® : Register your trademark early with the US Trademark and Patent Office
	Investigate if your products are can be protected by a trade dress (a trade dress refers to characteristics of the visual appearance of a product or its packaging that may be registered and protected from being used by competitors in the manner of a trademark, think Tiffany’s power blue and white boxes)
	Explore the resources of the US Custom Service Intellectual Property Rights Directives : For valid intellectual property holders US Customs provides an enforcement program to devoted to target, intercept, detain, seize and forfeit shipments of infringing goods when they enter the US.
	Use Branding to your advantage and associate your product in the consumer mind with a link to its authenticity (We all know what the famous LV looks like and stands for) to discourage the purchase of fake goods

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DILEXI FILTERED + legal+ NEWS

Dilexi filters legal trends and business news its findings to subscribers via free emails.

A publication of the Law Offices of Astride Howell (LOAH) began as a web forum by providing interesting and helpful information that you can apply your business. With Santa Monica based offices LOAH is a firm that specializes in the multi-disciplinary practice of providing business and legal services to fashion and entertainment clients. Attorneys work with clients on all aspects of their intellectual property protection and their business strategies to increase growth and capital in their businesses.

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