I 

112TH CONGRESS 

1ST SESSION H. R. 2511 

To amend title 17, United States Code, to extend protection to fashion 

design, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 13, 2011 

Mr. GOODLATTE (for himself, Mr. NADLER, Mr. SENSENBRENNER, Mrs. 

MALONEY, Ms. LINDA T. SA ́NCHEZ of California, Mr. COBLE, Mr. 

SCHIFF, Ms. JACKSON LEE of Texas, Ms. WATERS, Mr. ISSA, and Mr. 

RANGEL) introduced the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To amend title 17, United States Code, to extend protection 

to fashion design, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Innovative Design Pro5 tection and Piracy Prevention Act’’. 

6 SEC. 2. AMENDMENTS TO TITLE 17, UNITED STATES CODE. 

7 (a) DESIGNS PROTECTED.—Section 1301 of title 17, 

8 United States Code, is amended— 


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1 (1) in subsection (a), by adding at the end the 

2 following: 

3 ‘‘(4) FASHION DESIGN.—A fashion design is 

4 subject to protection under this chapter.’’; 

5 (2) in subsection (b)— 

6 (A) in paragraph (2), by inserting ‘‘, or an 

7 article of apparel,’’ after ‘‘plug or mold’’; and 

8 (B) by adding at the end the following: 

9 ‘‘(7) A ‘fashion design’— 

10 ‘‘(A) is the appearance as a whole of an 

11 article of apparel, including its ornamentation; 

12 and 

13 ‘‘(B) includes original elements of the arti14 cle of apparel or the original arrangement or 

15 placement of original or non-original elements 

16 as incorporated in the overall appearance of the 

17 article of apparel that— 

18 ‘‘(i) are the result of a designer’s own 

19 creative endeavor; and 

20 ‘‘(ii) provide a unique, distinguishable, 

21 non-trivial and non-utilitarian variation 

22 over prior designs for similar types of arti23 cles. 


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1 ‘‘(8) The term ‘design’ includes fashion design, 

2 except to the extent expressly limited to the design 

3 of a vessel. 

4 ‘‘(9) The term ‘apparel’ means— 

5 ‘‘(A) an article of men’s, women’s, or chil6 dren’s clothing, including undergarments, outer7 wear, gloves, footwear, and headgear; 

8 ‘‘(B) handbags, purses, wallets, tote bags, 

9 and belts; and 

10 ‘‘(C) eyeglass frames. 

11 ‘‘(10) In the case of a fashion design, the term 

12 ‘substantially identical’ means an article of apparel 

13 which is so similar in appearance as to be likely to 

14 be mistaken for the protected design, and contains 

15 only those differences in construction or design 

16 which are merely trivial.’’; and 

17 (3) by adding at the end the following: 

18 ‘‘(c) RULE OF CONSTRUCTION.—In the case of a 

19 fashion design under this chapter, those differences or 

20 variations which are considered non-trivial for the pur21 poses of establishing that a design is subject to protection 

22 under subsection (b)(7) shall be considered non-trivial for 

23 the purposes of establishing that a defendant’s design is 

24 not substantially identical under subsection (b)(10) and 

25 section 1309(e).’’. 


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1 (b) DESIGNS NOT SUBJECT TO PROTECTION.—Sec2 tion 1302(5) of title 17, United States Code, is amend3 ed— 

4 (1) by striking ‘‘(5)’’ and inserting ‘‘(5)(A) in 

5 the case of a design of a vessel hull,’’; 

6 (2) by striking the period and inserting ‘‘; or’’; 

7 and 

8 (3) by adding at the end the following: 

9 ‘‘(B) in the case of a fashion design, embodied 

10 in a useful article that was made public by the de11 signer or owner in the United States or a foreign 

12 country before the date of enactment of this chapter 

13 or more than 3 years before the date upon which 

14 protection of the design is asserted under this chap15 ter.’’. 

16 (c) REVISIONS, ADAPTATIONS, AND REARRANGE17 MENTS.—Section 1303 of title 17, United States Code, is 

18 amended by adding at the end the following: ‘‘The pres19 ence or absence of a particular color or colors or of a pic20 torial or graphic work imprinted on fabric shall not be con21 sidered in determining the protection of a fashion design 

22 under section 1301 or 1302 or in determining infringe23 ment under section 1309.’’. 

24 (d) TERM OF PROTECTION.—Section 1305(a) of title 

25 17, United States Code, is amended to read as follows: 


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1 ‘‘(a) IN GENERAL.—Subject to subsection (b), the 

2 protection provided under this chapter— 

3 ‘‘(1) for a design of a vessel hull, shall continue 

4 for a term of 10 years beginning on the date of the 

5 commencement of protection under section 1304; 

6 and 

7 ‘‘(2) for a fashion design, shall continue for a 

8 term of 3 years beginning on the date of the com9 mencement of protection under section 1304.’’. 

10 (e) INFRINGEMENT.—Section 1309 of title 17, 

11 United States Code, is amended— 

12 (1) in subsection (c)— 

13 (A) by inserting ‘‘offer for sale, advertise,’’ 

14 after ‘‘sell,’’; and 

15 (B) by inserting ‘‘either actual or reason16 ably inferred from the totality of the cir17 cumstances,’’ after ‘‘created without knowl18 edge’’; 

19 (2) by amending subsection (e) to read as fol20 lows: 

21 ‘‘(e) INFRINGING ARTICLE DEFINED.— 

22 ‘‘(1) IN GENERAL.—As used in this section, an 

23 ‘infringing article’ is any article the design of which 

24 has been copied from a design protected under this 

25 chapter, or from an image thereof, without the conVerDate Mar 15 2010 02:50 Jul 14, 2011 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2511.IH H2511

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1 sent of the owner of the protected design. An in2 fringing article is not an illustration or picture of a 

3 protected design in an advertisement, book, peri4 odical, newspaper, photograph, broadcast, motion 

5 picture, or similar medium. 

6 ‘‘(2) VESSEL HULL DESIGN.—In the case of a 

7 design of a vessel hull, a design shall not be deemed 

8 to have been copied from a protected design if it is 

9 original and not substantially similar in appearance 

10 to a protected design. 

11 ‘‘(3) FASHION DESIGN.—In the case of a fash12 ion design, a design shall not be deemed to have 

13 been copied from a protected design if that design— 

14 ‘‘(A) is not substantially identical in overall 

15 visual appearance to and as to the original ele16 ments of a protected design; or 

17 ‘‘(B) is the result of independent cre18 ation.’’; and 

19 (3) by adding at the end the following: 

20 ‘‘(h) HOME SEWING EXCEPTION.— 

21 ‘‘(1) IN GENERAL.—It is not an infringement of 

22 the exclusive rights of a design owner for a person 

23 to produce a single copy of a protected design for 

24 personal use or for the use of an immediate family 


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1 member, if that copy is not offered for sale or use 

2 in trade during the period of protection. 

3 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

4 this subsection shall be construed to permit the pub5 lication or distribution of instructions or patterns for 

6 the copying of a protected design.’’. 

7 (f) APPLICATION FOR REGISTRATION.—Section 

8 1310(a) of title 17, United States Code, is amended— 

9 (1) by striking ‘‘Protection under this chapter’’ 

10 and inserting ‘‘In the case of a design of a vessel 

11 hull, protection under this chapter’’; and 

12 (2) by adding ‘‘Registration shall not apply to 

13 fashion designs.’’ after ‘‘first made public.’’. 

14 (g) REMEDY FOR INFRINGEMENT.—Section 1321 of 

15 title 17, United States Code, is amended— 

16 (1) by striking subsection (a) and inserting the 

17 following: 

18 ‘‘(a) IN GENERAL.— 

19 ‘‘(1) VESSEL HULL.—In the case of a vessel 

20 hull, the owner of a design is entitled, after issuance 

21 of a certificate of registration of the design under 

22 this chapter, to institute an action for any infringe23 ment of the design. 

24 ‘‘(2) FASHION DESIGN.—In the case of a fash25 ion design, the owner of a design is entitled to instiVerDate Mar 15 2010 02:50 Jul 14, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2511.IH H2511

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1 tute an action for any infringement of the design 

2 after the design is made public under the terms of 

3 section 1310(b) of this chapter.’’; and 

4 (2) by adding at the end the following: 

5 ‘‘(e) PLEADING REQUIREMENT FOR FASHION DE6 SIGNS.— 

7 ‘‘(1) IN GENERAL.—In the case of a fashion de8 sign, a claimant in an action for infringement shall 

9 plead with particularity facts establishing that— 

10 ‘‘(A) the design of the claimant is a fash11 ion design within the meaning of section 

12 1301(a)(7) of this title and thus entitled to pro13 tection under this chapter; 

14 ‘‘(B) the design of the defendant infringes 

15 upon the protected design as described under 

16 section 1309(e); and 

17 ‘‘(C) the protected design or an image 

18 thereof was available in such location or loca19 tions, in such a manner, and for such duration 

20 that it can be reasonably inferred from the to21 tality of the surrounding facts and cir22 cumstances that the defendant saw or otherwise 

23 had knowledge of the protected design. 

24 ‘‘(2) CONSIDERATIONS.—In considering wheth25 er a claim for infringement has been adequately 


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1 pleaded, the court shall consider the totality of the 

2 circumstances.’’. 

3 (h) PENALTY FOR FALSE REPRESENTATION.—Sec4 tion 1327 of title 17, United States Code, is amended— 

5 (1) by inserting ‘‘or for purposes of obtaining 

6 recovery based on a claim of infringement under this 

7 chapter’’ after ‘‘registration of a design under this 

8 chapter’’; 

9 (2) by striking ‘‘$500’’ and inserting ‘‘$5,000’’; 

10 and 

11 (3) by striking ‘‘$1,000’’ and inserting 

12 ‘‘$10,000’’. 

13 (i) NONAPPLICABILITY OF ENFORCEMENT BY

14 TREASURY AND POSTAL SERVICE.—Section 1328 of title 

15 17, United States Code, is amended— 

16 (1) in subsection (a), in the first sentence, by 

17 striking ‘‘The Secretary’’ and inserting ‘‘In the case 

18 of designs of vessel hulls protected under this chap19 ter, the Secretary’’; 

20 (2) in subsection (b), in the first sentence, by 

21 striking ‘‘Articles’’ and inserting ‘‘In the case of de22 signs of vessel hulls protected under this chapter, ar23 ticles’’; and 

24 (3) by adding at the end the following: 


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1 ‘‘(c) NONAPPLICABILITY.—This section shall not 

2 apply to fashion designs protected under this chapter.’’. 

3 (j) COMMON LAW AND OTHER RIGHTS UNAF4 FECTED.—Section 1330 of title 17, United States Code, 

5 is amended— 

6 (1) in paragraph (1), by striking ‘‘or’’ after the 

7 semicolon; 

8 (2) in paragraph (2), by striking the period and 

9 inserting ‘‘; or’’; and 

10 (3) by adding at the end the following: 

11 ‘‘(3) any rights that may exist under provisions 

12 of this title other than this chapter.’’. 

13 SEC. 3. EFFECTIVE DATE. 

14 This Act and the amendments made by this Act shall 

15 take effect on the date of enactment of this Act. 

Æ 


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