Intellectual Property Tools For Protecting Fashion Goods

• Published date: 06 July 2022
• Subject Matter: Intellectual Property, Copyright, Patent, Trademark
• Law Firm: Fox Rothschild LLP
• Author: Nadine Banuelos

Just as every piece of artwork is unique, there is no 'one size fits all' when it comes to protecting your fashion goods with intellectual property tools. Below are three possible situations in which you can use intellectual property tools with respect to a product's nature, originality, consumer driven features, and potential for growth.

Scenario 1: Protecting the Work by Copyright.

The next time you would like to protect the design on a T-shirt, the pattern of design on fabric, or a jewelry design, you should consider whether your work can be copyrighted. Copyright protects 'original works of authorship' fixed in any tangible medium of expression, such as 'pictorial, graphic, and sculptural works.'¹ The best part about a copyright is that its registration is typically inexpensive and straightforward.

The term of a copyright for a particular work may depends on certain factors such as whether it has been published, and, if so, the date of first publication.² The general rule for works created after January 1, 1978, provides that copyright protection lasts for the life of the author plus an additional 70 years.³ For a work made for hire, anonymous work or pseudonymous work, the term is 95 years from the date of publication or 120 years from the date of creation, whichever expires first.⁴

In the event that infringement occurs, a designer must show that the infringer copied the designers copyrighted work.⁵ Direct proof of copying can be difficult; however, a designer can establish the element of copying by providing evidence that (1) the infringer 'had access to' the designer's work and (2) the two works are 'substantially similar.'⁶ If a designer is able to successfully improve infringement they may recover not only their own lost profits but also any profits accrued by the infringer from the infringed work.⁷

Although the copyright process is fairly inexpensive and simple, fashion companies should take extra care as to not be copyright infringers themselves. Take, for example, a T shirt which features a painting, sculpture, or even graffiti. Fashion companies should be aware that they may need to obtain a license to, or ownership of, the copyright from the photographer. As with all intellectual property tools, careful consideration should be taken when assessing a particular product's copyright status.

Scenario 2: Protecting Novel Designs by Patent.

The next time you would like to protect a great innovative design you expect will be a big hit on the market...