Lawyer Article

Legislation Watch Notice: New Legislation May Restrict Ability To Market "Hot" Fashion Designs

Congress is poised to consider renewed legislation directed to protecting fashion designs. The speed and proliferation of knock-offs of Hollywood's "red carpet" designs have led fashion designers to turn to Congress for help. So far, lawmakers have been receptive to the designers' pleas.

Elements of clothing have long been afforded some protection. Brand names, for example, are protected under trademark and anti-counterfeiting laws. Pattern designs and other separable elements of fashion enjoy copyright protection. The overall silhouettes and shapes, however, are excluded from protection under the copyright laws due to the prohibition against registration of "useful articles". While design patents protect ornamental appearances of useful articles, the lengthy examination process (1-2 years) have caused fashion originators to forgo the design patent route for fashion styles whose lifetime is measured in months, not years.

A fashion designers' trade association is convinced that the solution to stop knock-offs of "red carpet" fashions is new legislation. The goal is to amend the little-used Vessel Hull Protection Act, to now include "apparel". Specifically, the trade association seeks three years of protection to original designs of "men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, and tote bags; belts and eyeglass frames." Owners who register a new design within three months of introduction will be entitled to bring an action for infringement and obtain damages of $250,000 or $5 per copy, whichever is greater. Protection would not be available if the design "has become standard, common, prevalent, or ordinary" or differs "only in insignificant details or in elements which are variants commonly used in the relevant trades."

Although H.R. 5055 Design Piracy Protection Act did not pass last Congressional session, the generally favorable reaction to the House bill will lead to a speedy reintroduction, according to its bipartisan sponsors.

Representatives of industries who are fashion-impacted, such as furniture and home furnishings, also are monitoring closely this legislation. While only apparel and certain accessories are targeted in the present version of the bill, the opportunity to expand or follow this legislation with protection for other industries has been discussed.

We are in contact with the sponsors of this bill, as well as the fashion industry representatives who are pushing for enactment. One of our attorneys recently gave a speech on this legislation to the American Intellectual Property Lawyers Association and The Copyright Society of the USA. If you have questions regarding the impact of this potential legislation, or wish to advise us of your views of this legislation, please contact us.

Please contact the Womble Carlyle attorney with whom you usually work, or any of the following attorneys, if you have any questions.

Contacts:
Jack Hicks
Greensboro
(336) 574-8050
email

Randy Springer
Winston-Salem
(336) 721-3747
email

Jeff McFadden
Winston-Salem
(336) 721-3730
email

Christopher Bolen
Research Triangle Park
(919) 484-2391
email

Mitch Tuchman
Research Triangle Park
(919) 484-2333
email

Keats Quinalty
Atlanta
(404) 879-2423
email