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Limited to non-functional design elements that are “source-designating” rather than merely ornamental.
U.S. law: Wal-Mart Stores, Inc. v. Samara Bros., Inc . held that product design “almost invariably serves purposes other than source identification.” Someone seeking TD protection for any product design is required to show that the design has acquired “secondary meaning.” To meet this requirement, a designer must show that “in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself.” 529 U.S. 205 (2000)
Standard is hard to meet in fashion industry, especially by new designers due to costs, time, and uncertainty.
Created uniform design protection for fashion designs
Design must be new and give an overall impression different from known designs
Design = “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shapes, texture, and/or materials of the product itself and/or its ornamentation”
Protects against deliberate copying
Term- 3 years starting from date on which the design is first made available to the public in any of the 25 countries of the EU
Protect against both deliberate copying and the independent development of a similar design
Term – 5 years, renewable for 4 additional 5 year renewable terms
Seeks to harmonize international IP rights by setting a minimum level of protection each signatory government must provide
Article 25(2) states: “Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protections. Members shall be free to meet this obligation through industrial design law or through copyright law.”
Review of EU fashion design registration database for all apparel registered from Jan 1, 2004 – Nov 1, 2005 showed only 1631 fashion designs had been registered (approx 800 “designs” were plain t-shirts or other tops with TM or pictorial works, pocket stitching for jeans, and athletic wear bearing TMs)
Small number of companies registered their designs
Street One GmbH, a mid-tier German fashion firm was solely responsible for 409 registrations.
Those seeking protection appear to be largely SMEs
Possible Explanations for Apparent Underutilization
Threshold for originality may be too low
Figures may be misrepresentative
Designers may be opting for unregistered free 3-year protection
Large scale copying in 2003 that almost put them out of business.
Consulted experts at an IP training seminar sponsored by Pakistan’s Small and Medium Enterprise Development Authority (SMEDA) who recommended seeking protection under Pakistan’s Industrial Design Ordinance 2000.
Registered all designs for the Yahsir Waheed Designer Lawn Collection.
Infringers are no longer making exact replicas, but copies are still close enough to confuse buyers.
Brimful owners complain about high costs of legal counsel, and lengthy process of obtaining & implementing a court injunction.