On July 13, 2011, the Innovative Design Protection and Piracy Prevention Act, (“IDPPPA”), was yet again introduced in the United States House of Representatives. It was Previously introduced in 2006, 2007, 2009, and 2010. The IDPPA, if enacted, will impact designers, manufacturers, and retailers alike. 

Background

The IDPPPA, also known as Fashion Copyright Law, aims to protect the creations of fashion designers, not just their name brands or fabric patterns (already protected under U.S. trademark and copyright laws, respectively). Historically, fashion designs, including clothing and accessories, have been deemed “useful articles” and thus not subject to legal protection by themselves. Such articles can be protected under the Copyright Act if they possess elements of pictorial, graphic, or sculptural work, which are separately identifiable and exist apart from the work’s utilitarian aspects. 

Although the IDPPPA will restrain the currently prevalent practice of copying designs and thus place curbs on the manufacturing industry, it is important to note that the bipartisan bill has widespread support from both sides of the fashion industry.  Significantly, the IDPPPA has been supported by designers and manufacturers alike from the beginning, through the Council of Fashion Designers of America and the American Apparel and Footwear Association.

Current Levels of Protection

The fashion industry has never been able to rely on U.S. copyright law to completely protect their unique and novel designs. Knockoffs are exceedingly common throughout the U.S. and original designers currently have no legal recourse. Unlike their European, Japanese, and Indian counterparts where the protection of fashion designs is a part of the legal and cultural fabric, the U.S. has failed to provide a clear and comprehensive framework for protecting fashion designs against infringement.

Design patent and trade dress law have provided fashion companies trading in the U.S. only limited protections. Trademark law currently protects the product’s name brand and requires the mark to have high levels of consumer association. For example, the public must associate a certain product with a certain brand. However, within the realm of fashion design such association is difficult to achieve because the industry is seasonal and the time frame to acquire sufficient consumer association is insufficient in the vast majority of cases. 

Unfair competition is another route that some designers choose in protecting their marks and creations. Again, the seasonal nature of designs renders the success of such claims highly unlikely because the claimant must show that the public is confused by the presence of copies in the market due to the original’s acquisition of a “secondary meaning” in the public consciousness.

Additionally, although fabric patterns are protected under copyright law, it is of little value to designers because they rarely create their own original fabric patterns. 

Protection under the IDPPPA

The IDPPPA dramatically increases the level of protection given to fashion designs. It directly protects them by including the term “fashion design” and defines it broadly to include the appearance as a whole of the apparel item, including original elements and their arrangement on the garments. “Apparel,” for purposes of the proposed law, includes the whole lot: from clothing articles, to gloves, and even eyewear. 

The IDPPPA standard for infringement of a fashion design is “substantially identical,” and is a slightly stricter standard than other items protected under U.S. copyright law. For example, infringement may be found if an article of apparel 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.”

Everything that is already in the public domain, i.e. all the fashion designs created up until the time the bill becomes law, will continue to be in the public domain. Thereafter, new fashion designs will acquire a term of protection of three years, and registration will not be required. 

As the bill is currently written, plaintiffs must meet a heightened pleading standard to bring a claim under the proposed law. The complaint must establish that the protected design or its image was available in a location, manner, and for a certain period during which it can be reasonably inferred from a totality of the circumstances that the defendant saw it or could have had knowledge of the protected design. 

Those who make, have made, import, sell, offer for sale, advertise, or distribute an otherwise infringing article are not liable under the IDPPPA if the articles were made without knowledge. In addition, there is a home-sewn exception for a single copy made for personal use and without any intent to be offered for sale. 

If enacted, the United States would join other countries that already have similar laws specifically protecting fashion design, including France, the European Union, Japan, and India. In any case, the IDPPPA is still a lighter version of its much stricter French counterpart.  

How The Market Is Affected

To illustrate how the bill would affect the market, one need look no further than the recent U.K. royal wedding of Prince William to Kate Middleton. A mere 12 hours after the bride became Her Royal Highness the Duchess of Cambridge, Los Angeles-based dress maker A.B.S. by Allan B. Schwartz had already created a copy of the wedding gown which was projected to hit stores within weeks. If the IDPPPA were in effect at that time, A.B.S. would have been required to create a dress not substantially identical to the original Sarah Burton creation. You be the judge: Click here to see image.

Conclusion

Those in the apparel business should pay close attention to the impending enactment of IDPPPA. If it does become law, even retailers will need to carefully monitor the apparel they purchase from their manufacturers because it is almost certain that designers will be keeping a close eye on retailers’ storefront windows!