Ownership and protection of brands

The nature of the fashion industry, where constant change is needed to ensure job security and to fuel commerce, presents challenges to brand owners, who are torn between protecting their intellectual property and taking part in the industry’s inherent “sharing and borrowing” that creates consumer demand and generates sales.

Virtually no designer can create a completely unique line of fashion merchandise that will sell in the market, yet all would like the profits resulting from a hot fashion trend.

This is a long-standing controversy in the field of fashion—designers have sought to protect the ownership of their creations for nearly 100 years. The Fashion Originators Guild was formed in 1932 by a group of designers who urged retailers to boycott manufacturers of copied designs. But trying to make retailers the responsible filter for ethics in the fashion industry was ill-founded because retailers had little motivation to increase their costs of merchandise and correspondingly decrease their sales volume and markup.

Furthermore, it has been—and continues to be—difficult for original designers to identify a specific trade infringement for styles that do not have copyrighted items, such as trademark logos, unique embroidery, and surface patterns on fabrics. And sometimes the very designers who indignantly complain about being copied are often targets of intellectual property complaints themselves.

Over the years, the federal government has sought to bring a certain degree of ethics to the marketplace via legislation.

• The Tariff Act of 1930 offers protection of trademarks.
• The Lanham Trademark Act of 1946 put the obligation of responsibility on producers and made it possible for trademark owners to sue to protect their work from being copied.
• The Trademark Law Revision Act of 1988 introduced protection for intellectual property owners at the federal level in the United States.

Recent legislation

More recently, House of Representatives Bill 32, known as the Stop Counterfeiting in Manufactured Goods Act, was signed into law by President George W. Bush in 2006. This law, the US Federal Trademark Dilution Act, calls for prison terms of up to 20 years, fines up to $15 million, and mandatory forfeiture of merchandise, destruction of equipment used for manufacture, and restitution provisions to owners of intellectual property in response to counterfeiting. In addition to stiffer penalties, the new law criminalizes counterfeit trafficking regardless of whether the counterfeited products have counterfeit labels. This means that the styles themselves, whether or not they have been actually labeled with counterfeit logos or brand names, are subject to intellectual property protection. This is important because counterfeit goods can be manufactured in one location, imported, and then labeled in the final stages of distribution.

The Design Piracy Prohibition Act was introduced in the US Senate in August 2007 after being presented to the House of Representatives in April of that year. At his press conference in New York City’s fashion district to support the act, Senator Charles Schumer (sponsor of the legislation) was accompanied by notable fashion designers including Jeffrey Banks, Narciso Rodriguez, Nicole Miller, Marc Bouwer, Richard Lambertson, Yeohlee Teng, Dana Foley, and Susan Posen (CEO of Zac Posen), as well as the past president and current executive director of the Council of Fashion Designers of America (CFDA), Stan Herman and Steven Kolb (Ellis, 2007). Though the bill would have protected fashion designs, defined as “the appearance as a whole of an article of apparel, including ornamentation,” for a period of three years, after a hearing in 2008, it was never presented for a vote.

Why is it difficult to protect intellectual property?

Fashion items are particularly difficult to protect using intellectual property laws for several reasons. As previously mentioned, the process of fashion creation, with tendencies to modify existing styles and reuse historical influences, contributes to the difficulty designers have in copyrighting and protecting their creations. Therefore, determining the specific design to be copyrighted is difficult.

Another even more intrinsic barrier to protecting apparel fashion is that the fashion items themselves, clothing, have usefulness beyond the style designs. Historically, only creative designs that have no secondary utilitarian function have been subject to copyright. This means that specific stitching or appliqué patterns that are applied to apparel can be copyrighted, but the cut of the garment itself cannot be protected.

Designers are debating this issue, but must continuously weigh the cost of fighting copyists with the need to move on and create the next season’s fashions.

Having a clear understanding of some of the difficulties in copyrighting and protecting creations that designers face is crucial for any participant in the fashion industry.