By James Stewart

While New York has Fashion Week, September has proved to be Fashion Month in the Senate. On September 10, 2012, Senator Charles Schumer (D-NY) introduced S.3523 the “Innovative Design Protection Act of 2012” (“the Bill”).  The Bill, aimed at extending intellectual property protection to fashion designs, was approved by the Senate Judiciary Committee on September 20, 2012.

WHAT DOES THIS MEAN FOR FASHION DESIGNERS?  

It is no secret that intellectual property protection for fashion designs has been a heavily debated issue in the legislature since 2006.  While one would think the fashion community would be ecstatic about protection for original designs and creativity, in an industry with diverse stake holders, many are concerned about the potential implications of this Bill and its effects on fashion designers’ rights.

Although exceptional limits exist in each of the methods fashion designers may use to try to protect their designs, fashion designers today rely primarily on trademark, patent, and anti-counterfeiting laws as the main sources of protection for their intellectual property.  Additionally, fashion designers are afforded very limited protection under the current iteration of the Copyright Act.  Trademarks are used to protect the integrity of the designers’ brands.  Patents are useful for some fashion designs, although due to the lengthy application and registration process, the need for a patent is often obsolete by season’s end.

The proposed pieces of legislation to-date have tried to provide protection for fashion design under the Copyright Act, calling for a three year term of protection for original articles of apparel.  Under these proposed bills, the standard for copyright infringement would be articles which are “substantially similar” containing only minor or trivial differences. 

This standard has caused concerned across a wide spectrum of fashion designers, from innovative designers to the more conservative designers, for its practical challenges in enforcement.  Fashion is a collective effort of designers who receive inspiration from all aspects of their daily lives, generations past, and other designers.  An essential element in fashion is recycling and renovating.  Therefore, designers are not only concerned about protecting their own designs, but also the risks associated with their own designs in the future.  

THE 2012 BILL

The new Bill seeks a practical, designer-friendly solution which avoids the overreach of legislation.  This Bill specifically provides that the design owner of the design must provide notice of the design’s protection to any person the design owner believes has violated or will violate his rights under the Copyright Act.  Once a designer issues this written notice, a mandatory 21-day waiting period would be imposed before he could file an infringement action.

In an effort to curtail pecuniary hardship for potentially infringing fashion designers, damages would be calculated from the date the infringement action was filed, not the date on which the infringing articles were first sold.

The Senate approved this Bill on a voice vote.  Now, we will have to wait and see how the fashion and legal communities respond.

What do you think about the fashion design community’s collective attitude to limit damages, even though individual designers are at risk of infringement?