Academic journal article Washington and Lee Law Review

Tearing Fashion Design Protection Apart at the Seams[dagger]

Academic journal article Washington and Lee Law Review

Tearing Fashion Design Protection Apart at the Seams[dagger]

Article excerpt

Table of Contents

I. Introduction.................................................................................216

II. The Current State of Intellectual Property Law ............................221

A. Failure of Intellectual Property Law to Protect Fashion Designs..................................................................................222

1. Patent Law ......................................................................222

2. Trademark and Trade Dress............................................ 224

3. Copyright........................................................................228

B. Failure of "Conceptual Separability" to Meaningfully Protect Fashion Designs ........................................................229

C. Failure of Courts and Congress to Allow for the Protection of Fashion Designs ...............................................233

III. The Creation of Fashion Design Protection..................................239

A. Proposed Protection Under the Design Piracy Bills...............240

B. Current Fashion Design Protection Offered in Japan and the European Union........................................................245

1. Japan...............................................................................246

2. The European Union.......................................................248

IV. The Practical Effects of Enacting Fashion Design Protection....... 252

A. The Argument Against Protecting Fashion Designs ..............252

B. Suggestions to Improve Protection for Fashion Design......... 264

V. Conclusion....................................................................................272

I see. You think that [fashion] has nothing to do with you. You go to your closet and you select... that lumpy blue sweater.... But what you don't know is that that sweater is not just blue. It's not turquoise. It's not lapis. It's actually cerulean. And you're also blithely unaware of the fact that in 2002, Oscar de la Renta did a collection of cerulean gowns. And then I think it was Yves Saint Laurent, wasn't it, who showed cerulean military jackets? ... And then cerulean quickly showed up hi the collections of eight different designers. And then it, uh, filtered down through the department stores and then trickled on down into some tragic Casual Comer where you, no doubt, fished it out of some clearance bin. However, that blue represents millions of dollars and countless jobs and it's sort of comical how you think that you've made a choice that exempts you from the fashion industry when, in fact, you're wearing a sweater that was selected for you by the people in this room ....

-Miranda Priestly, The Devil Wears Prada1

I. Introduction

While Miranda Priestly's self-important observation in the recent 20th Century Fox film, The Devil Wears Prada, certainly elicits the desired laughter from the viewing audience, it also highlights the influential impact that haute couture fashion designers have on clothing trends.2 In a country that has a well developed system of copyright, trademark, and patent protection and actively punishes violations of those protections, one would expect protection for fashion creations. Thus, the ease with which designers can pass fashion trends to mass consumers may come as a surprise.3 Fashion designs fall into intellectual property's "negative space" and derive virtually zero benefit from current legal protections.4 This lack of protection allows a "design pirate" to look at a photograph or display of a $600 Oscar de la Renta pump, make an exact replica, and sell the shoe on the mass market without violating any law, with very few exceptions.5

Without protection, designers can do very little to "prevent the rampant piracy of their fashion designs."6 Such piracy allegedly harms the designer "[b]ecause these knockoffs are usually of such poor quality[;] these reproductions not only steal the designer's profits, but also damage his or her reputation. …

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