No. 58: Comparison of the Intellectual Property Protections Available ...

No. 58: Comparison of the Intellectual Property Protections Available for Fashion Designs in the U.S. and the EU
Details
Author(s):
Dagmar Strukelj
Publish Date:
June 12, 2020
Publication Title:
TTLF Working Papers
Publisher:
Stanford Law School
Format:
Working Paper
Citation(s):
Dagmar Strukelj, Comparison of the Intellectual Property Protections Available for Fashion Designs in the U.S. and the EU, TTLF Working Papers No. 58, Stanford-Vienna Transatlantic Technology Law Forum (2020).
Abstract
The fashion industry is a fast-paced industry in which imitation is very common and to some extent desirable because it spurs creativity. However, the issues of imitation practices and copying have generated much debate among legal scholars. On the one hand, under a utilitarian perspective some scholars find all copying activities permissible and even crucial for the dissemination of high fashion designs to lower income consumers and for the development of new trends. They claim that protection for fashion designs from copying is unnecessary because the U.S. fashion industry is booming even without copying restrictions. On the other hand, their critics point out that, although design piracy is not a new phenomenon, counterfeiting is due to a rise of new technologies that make it easier and faster than ever before, and morally and economically disincentivize designers from further innovation. Furthermore, they emphasize that: first, widespread and copied items damage consumers’ expectations to signal that they belong to a superior class by owning a luxury item; and second, the prevalence of designer copies disables satisfying the needs of uniqueness-seeking consumers, whose desire is primarily to express their unique personal style without necessary communicating a status. The importance of protecting the interests and satisfying the needs of all types of consumers is another reason why strong IP protection should be in place.
Today, unlike in the EU, the U.S. does not offer sui generis protection for fashion designers, which has led to design copying, as mentioned above, becoming a serious problem. The EU offers Unregistered Community Design (UCD), which offers three- year protection, and Registered Community Design (RCD), a 25-year protection for designs that are expected to stay in the market for a longer time. In contrast, U.S. law does not provide short-term protection similar to the EU’s UCD. Apart from RCD and UCD, the EU also protects fashion designs under copyright law, while in the U.S. fashion designs are regarded as useful articles and thus excluded from any copyright law shield. In the U.S., designs could be protected by design patent rights, but patent protection is less adequate for a fast-paced fashion industry because of the length of time required to obtain a patent protection and the patent preconditions of novelty and non-obviousness. The expensive procedures for obtaining a patent could be especially detrimental for emerging designers who do not have sufficient financial means to pursue a patent. Different studies have shown that designers rely merely on trademark and trade dress to protect themselves against design piracy. However, trademark law offers protection for goodwill and reputation, but it is not available for the cut of a garment.