Spring Fashion Season: The Time is Ripe for Rip-Offs and the Industry Still Awaits a Remedy

by Nexsen Pruet, PLLC

It’s March, and in Charleston thoughts turn to longer days, spring break and, relatively recently, fashion. The tents go up in Marion Square mid-month for fashion fans to enjoy a week of shows featuring new designs and clothes from local stores.  It is a lot of fun and, actually, very big business, considering that the fashion industry in the United States alone employs more than 4-million Americans and accounts for $350 billion in annual retail sales.

But fashion design is also art, and as an intellectual property lawyer who works to help clients protect rights in artistic works, I have been watching the development of a law to protect the original designs of three-dimensional clothing and footwear in the United States.  Unfortunately, the current system of intellectual property laws – consisting of patent, copyright and trademark – does not provide a one solution for designers to protect their work from being blatantly copied.

Rumblings about coming up with a new system have been ongoing in the fashion industry for a while, and, since 2006, several bills have been proposed.  It wasn’t until last fall, however, that a piece of legislation got the support of the American Apparel & Footwear Association and the Council of Fashion Designers of America, two national trade groups influential in the American fashion industry. 

In October 2012, the leadership of these associations called the Innovative Design Protection Act (IDPA, S. 3523) introduced by Sen. Charles E. Schumer, D-N.Y., a “practical and workable approach to the real but narrow issue of ‘design piracy,’” which is understood to be the primary concern driving development of the law. The IDPA, also called the “Fashion Bill,” was placed on the Senate legislative calendar December 20. It was reported by Committee but unfortunately died at the end of the last session.  It won the support of the AAFA and the CFDA with its specific focus on three key sets of provisions:

First and primarily, the bill proposed three years of protection to fashion designs that are truly new and original; i.e., those that have never been seen before.  This protection would extend to the entire article of clothing but would not cover any individual part of a garment like the design of a sleeve or a pocket. It prohibited the creation of “substantially identical” copies of protected designs or anything close enough to likely be mistaken for the original. 

Second, the Fashion Bill contained a “heightened pleading standard” or certain required content for filings to try to cut back on frivolous lawsuits.  More simply stated, a designer who wants to claim piracy – or “infringement” – of a design would be required to plead facts in the complaint demonstrating that the design was protected, how it had been infringed and how the design was available for the defendant to see or have knowledge of it for the copying.  And, in addition:

  • The bill clarified that the facts of availability should be specific enough to give rise to a “reasonable inference” that the defendant had access to the design.
  • The bill proposed severe penalties for misrepresentations in the initial filing.  In addition to this standard, a plaintiff would have to provide written notice of belief of infringement to the believed infringer and would have been prohibited from filing any lawsuit or accrual of any damages until 21 days after such notice is provided without any cure.
  • In regard to defense, the bill allowed an accused infringer to argue that the design at issue is an independent creation or that the protected design is actually already in the public domain, meaning the design is already widely known in the world of fashion and not protectable (the bill lists specific examples of cargo shorts, denim jeans and pencil skirts).

Third, the Fashion Bill specifically lifted any liability from regular consumers who buy the infringing design and home sewers who design and make items for personal use.  It also eliminated the possibility of liability for website hosts by making clear that merely providing internet sales facilities is not an act of infringement.

Since this bill wasn’t introduced until September 20, 2012, near the end of the Congressional session, expectations for it to get passed were pretty low.  Nonetheless, industry observers were invigorated by the introduction and, in large part, more satisfied with this bill’s text than any previous bill.

So.  Is there anything a designer can do until the Fashion Bill passes?

Currently, a designer can register copyrights for original prints and patterns, unique color arrangements and novel combinations of elements used on an article of clothing or footwear as well as any protectable design elements that can be separated, either physically or conceptually, from the utilitarian aspect; i.e., any useful and functional aspect of the article.  A designer can also file a patent for new and non-obvious ornamental designs of functional items.  Finally, a designer can federally register for trademark and/or trade dress protection of a brand name, logo, packaging and any other element that identifies the garment or article as belonging to a particular designer’s house or line.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nexsen Pruet, PLLC | Attorney Advertising

Written by:

Nexsen Pruet, PLLC

Nexsen Pruet, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.