If you read my post on trade dress, you are familiar with my lament on the absence of statutory protection from design piracy. United States fashion designers must face the reality that the overall appearance of their garments and accessories can and will be copied.
My post touched on one form of self-help – the creation of a garment or accessory that is impossible to copy at a price point enticing to a design pirate. However, this form of self-help is of no use when you get the attention of a design pirate that is wearing very expensive shoes.
My son, Ian Stonebrook, a sneakerhead and Associate Editor of NiceKicks.com, opened my eyes to the “reverse Robin Hood,” luxury updates on “classic kicks.” As Ian observed in his article, when popular sneakers are copied by luxury brands, the luxury updates are “celebrated as everything from next level fly to the natural maturation of a sneakerhead. Conversely, they’ve been jeered as pop culture poaching, over-priced hype or just straight up copying.” Should we assume that the high end copier paid for the privilege or may actually improve on the design? Or should we lament the probable, negative effect on innovation? Surely the Air Force 1 is the result of a designer’s struggle through many disappointing prototypes. Will they want to keep struggling through the process of perfecting a design if they can be easily copied?
If you are reading this after making yet another prototype in your studio, I’m sorry to say that I don’t see any legislative protection on the horizon. However, there are ways to adopt existing intellectual property law to protect your design work to the greatest extent possible. For the great many that don’t have the brand recognition that is needed for trade dress protection, understanding and strategically using your trademark is imperative.