Academic journal article Harvard Law Review

The Devil Wears Trademark: How the Fashion Industry Has Expanded Trademark Doctrine to Its Detriment

Academic journal article Harvard Law Review

The Devil Wears Trademark: How the Fashion Industry Has Expanded Trademark Doctrine to Its Detriment

Article excerpt

I. INTRODUCTION

Over the past decade, the uncertainty of fashion's status as protectable intellectual property has generated enormous controversy. It is no wonder: in 2011, apparel sales in the United States amounted to almost two hundred billion dollars; (1) handbag sales alone accounted for eight billion dollars that year and are continuing to balloon at ten percent annually. (2) This trend is also global. Fashion has become one of the largest and most dynamic industries in the world. Global fashion revenue totals one trillion dollars per year, representing four percent of global GDP. (3) Unsurprisingly, then, the question of intellectual property protection for fashion design has commanded attention from designers, litigators, policymakers, and consumers. Nevertheless, growth in the industry's economic importance and in the ease of pirating fashion designs have both outpaced legal change. (4)

American fashion designers have largely failed to achieve protection for their designs through existing copyright and patent law and through lobbying for changes to those or other laws. Instead, as this Note argues, designers have turned their efforts to the courts, where their lawyers have co-opted trademark law as a tool for protecting designs that arguably would not have been entitled to protection under the traditional scope of trademark law or under any other intellectual property scheme in the United States. While much has been written on the expansion of trademark doctrine, little attention has been given to trademark law's increased protection of what this Note terms "quasi-designs"--patterns or shapes that walk the line between logos and designs. Such quasidesigns are nominally trademarkable logos but practically nontrademarkable designs--and perhaps functionally both. By highlighting some of the most influential cases in this arena, this Note exposes and analyzes the language in recent court opinions that signals judicial relaxation of the traditional conceptual scope of trademark law, such that trademarks are no longer strictly limited to logos and may instead be rooted in quasi-designs. Such decisions are effectively creating a loophole in the system whereby designers can receive permanent rights over quasi-designs that masquerade as logos.

This Note also argues, however, that the industry's efforts to co-opt trademark law lead largely to negative and even self-defeating results, such as a bias favoring large incumbent brands and the inducement of laziness in design. Specifically, designers have--perhaps predictably--shifted their design focus from innovation in the product itself to the generation of more prominent and elaborate iterations of the logos emblazoned on their products. Such a focus on logos may ultimately harm a brand's image as the market becomes oversaturated with exposure. Furthermore, society receives nothing in return for protecting these rights. Instead of allowing this creeping doctrinal expansion to continue, Congress should simply create sui generis legislation for the protection of fashion design, under either copyright or patent law.

This Note proceeds in four parts. Part II discusses why the fashion industry, for both practical and strategic reasons, has turned to trademark law as the means of protecting design. Part III shows, by highlighting and analyzing some of the most impactful trademark cases, how courts have gradually expanded trademark doctrine's reach to include quasi-designs. Part IV presents the largely negative implications of such expansion. Part V concludes with some thoughts on what form sui generis legislation for fashion design might take.

II. WHY THE FASHION INDUSTRY HAS RESORTED TO TRADEMARK LAW FOR PROTECTION OF DESIGNS

A. Lack of Protection from Traditional Copyright and Patent Law Regimes

U.S. copyright and patent regimes shun protection for fashion design. Though the United States is an outlier in this respect, (5) its lack of copyright protection for fashion design is historical: U. …

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