2. Introduction US Fashion Market: $200 billion More than books, film, and music combined Haute couture, mid-market, mass market US is the pirate nation EU, Japan, India, Australia have some form of design protection Historical Context Fashion Originator’s Guild of America Recent US legislation
3. Negative IP Space Fabric Print v. Cut/Design Patent/Design Patent Trademark/Trade Dress Copyright Right of Publicity Other industrial designs protected Architectural works Vessel hulls Semiconductors
4. Should Design Be Protected? Purpose of IP Protection (U.S. Const. art. I, § 8, cl. 8) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries Piracy Paradox Induced Obsolescence Innovation Copying at the Expense of Creativity Technology/Speed
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8. Copyright Useful Article Limitation/Conceptual Separability Mazer v. Stein Brandir Intl., Inc. v. Cascade Pacific Lumber Co. Kieselstein-Cord v. Accessories by Pearl
13. Extending Copyright 70 years + life of the author WMFH 95 years + publication/120 years + creation Promoting innovation?
14. IDPPPA (S. 3728) Innovative Design Protection & Piracy Prevention Act August 5, 2010 Senator Charles Schumer (D. NY) 17 USC 13: Original Designs (Vessel Hull Designs) Three-year sui generis protection for fashion design
15. “Substantially Identical” Protected designs are those with “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs” “Substantially Identical” designs are prohibited “Substantially Identical” is defined as: an article of apparel which is so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.
16. “Non-Trivial” Designers must prove their design is a “non-trivial” variation over prior designs Does this restrict a design inspired by a past design? Does this restrict a design inspired by a public trend? Cannot use colors, and pictorial or graphic elements imprinted on the fabric to determine the uniqueness of a design
17. Registration Not Required Fashion Designs would not need to be registered in order to receive protection Therefore, there is no initial Copyright Office determination of valid design protection The designer makes initial determination Marking designs as protected False marking penalties Over-inclusion of designs protected?
18. Plead with Particularity Designer would bear a greater burden at the time of enforcement The design is protected; The defendant’s design infringes upon the protected design; and The protected design or an image thereof was available to the extent it is reasonable to infer defendant had access to the protected design.
19. Using Existing Jurisprudence Substantial similarity Ordinary lay observer Borrowing from trademark law Access Functionality
20. Thank You Janet Kim Lin Bullivant Houser Bailey – Seattle Office Chair, Fashion & Design Division Tel: 206.521.6437janet.lin@bullivant.com
