From Runway To Replica: Intellectual Property Strategies For Protecting Fashion Designs

Designers like Alexander Wang, Rebecca Minkoff, and Michael Kors are all gearing up to premier their 2016 fall/winter collections this month during New York Fashion Week. Fashion Week draws more than 230,000 attendees each year to over 500 runway shows and events in New York City. The economic impact of this biannual event is estimated to be close to $900 million. That's more than the U.S. Open, which generates approximately $750 million annually for New York, and the Super Bowl, which generated an estimated $550 million when it was held in the New York metropolitan area in 2014.

Despite these numbers, the economic impact on the fashion industry from the sale of counterfeit and infringing fashion products is staggering. A report issued by the EU's Office for Harmonization in the Internal Market found that approximately 10% of fashion products sold are counterfeits, amounting to approximately $28.5 billion of lost revenues per year. Some designers also fear that inventions such as 3D printing could make it possible for even the average consumer to replicate runway fashions. Rapper turned designer Kanye West, who is expected to release the third installment of his fashion collection "Yeezy" at New York Fashion Week this month, echoed this fear, noting that 3D printing could one day impact the fashion industry, just as "the internet destroyed the music industry." But even without 3D printers, a consumer can easily obtain a less expensive replica of an independent designer's fashions, sometimes before the design hits the general market. It only takes one cell phone photo, snapped at a fashion show and sent overseas, to cheaply manufacture less expensive replicas and ship them back to the states before the designer has even had a chance to produce and sell her original design.

Thankfully, U.S. intellectual property law offers designers some protection against the sale of counterfeit and infringing fashion products.

Patent Law

U.S. patent law provides protection for certain fashion products. Design patents, which last for 14 years, can protect footwear, jewelry, handbags and other fashion accessories, provided the design is novel, nonobvious and ornamental (as opposed to functional). Some well-known fashion designs are the subject of U.S. design patents, including Bottega Veneta's "Veneta" handbag and Jimmy Choo's "With a Twist" shoe design. Clothing designs can be difficult to patent because they are unlikely to be novel or nonobvious enough to merit patent protection. Occasionally, a design patent will be granted for clothing, like Christian Dior's coat dress. However, design patents can take...