The Devil Wears Trademark: How The Fashion Industry Has Expanded Trademark Doctrine To Its Detriment



Over the past decade, the uncertainty of fashion’s status as protectable intellectual property has generated enormous controversy. It is no wonder: in 2011, apparel sales in the United States amounted to almost two hundred billion dollars;1 handbag sales alone accounted for eight billion dollars that year and are continuing to balloon at ten percent annually. This trend is also global. Fashion has become one of the largest and most dynamic industries in the world. Global fashion revenue totals one trillion dollars per year, representing four percent of global GDP. Unsurprisingly, then, the question of intellectual property protection for fashion design has commanded attention from designers, litigators, policymakers, and consumers. Nevertheless, growth in the industry’s economic importance and in the ease of pirating fashion designs have both outpaced legal change.

American fashion designers have largely failed to achieve protection for their designs through existing copyright and patent law and through lobbying for changes to those or other laws. Instead, as this Note argues, designers have turned their efforts to the courts, where their lawyers have co-opted trademark law as a tool for protecting designs that arguably would not have been entitled to protection under the traditional scope of trademark law or under any other intellectual property scheme in the United States. While much has been written on the expansion of trademark doctrine, little attention has been given to trademark law’s increased protection of what this Note terms “quasidesigns” — patterns or shapes that walk the line between logos and designs. Such quasi-designs are nominally trademarkable logos but practically nontrademarkable designs — and perhaps functionally both. By highlighting some of the most influential cases in this arena, this Note exposes and analyzes the language in recent court opinions that signals judicial relaxation of the traditional conceptual scope of trademark law, such that trademarks are no longer strictly limited to logos and may instead be rooted in quasi-designs. Such decisions are effectively creating a loophole in the system whereby designers can receive permanent rights over quasi-designs that masquerade as logos.

Originally published in the Harvard Law Review - Volume 127, No. 3 January 2014.

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