Academic journal article Journal of Legal, Ethical and Regulatory Issues

Risk of Intellectual Property among Fashion Designs

Academic journal article Journal of Legal, Ethical and Regulatory Issues

Risk of Intellectual Property among Fashion Designs

Article excerpt


The protection of fashion design is not well defined under legal regulations in most jurisdictions. In general, fashion design is not clearly defined in any specific law and its protection is likely to expand through various intellectual property laws; generally copyright, trademark and design patent. Moreover, its practical applications in many jurisdictions have often been perplexing and unclear.

Legal scholars have different views. On the one hand, some scholars criticize the available legal regime for failing to protect fashion design; arguing that the court should expand more protections and Congress should fix the problem. On the other hand, the other group of legal scholars propose "piracy paradox" explanation; arguing that the fashion industry counterintuitively operates within a low intellectual property equilibrium in which copying does not really deter innovation and may actually promote it.

Likewise, courts in different jurisdictions have struggled with various approaches of analysis and reasoning. Accordingly, fashion design could be treated differently by several intellectual property laws and varied interpretations. Such unclearness causes major legal risk in design industry worldwide. This article studies intellectual property protection in fashion design and discusses court cases as well as proceeding related to fashion design lawsuits in the US and Thailand. Recently, the US Supreme Court formulated a two-prong test in Star Athletica v. Varsity Brands, 578 US (2016) to focus on whether the design element can be identified separately from the article and whether the design element is imagined separately from the useful article. However, the Court was careful to note that even if respondents ultimately succeed in establishing a valid copyright protection, respondents could not bar any person from manufacturing uniforms with identical shapes, cuts and dimensions as the ones in question. In addition, the Court declined to rule on whether the surface decorations in question were sufficiently qualified for copyright protection by holding that "we do not today hold that the surface decoration is copyrightable. We express no opinion on whether these works are sufficiently original to qualify for copyright protection". Still, this holding leaves significant uncertainty about the application of copyrights to surface decoration and fashion design.

In a similar fact, the Thai Supreme Court held in the case number 19305/2555 (2012), that copyright ability needed to meet the requisite level of creativity. Designing silk elephant doll similar to the design of elephant emblem on the Royal Navy flag was not qualified as the creativity level and not copyrightable. The justification for copyright protection in this case establishes high standard for a designer to claim his or her copyright.

This article examines various intellectual property protections of fashion design; particularly trademark, design patent and copyright. Then, the protection of fashion design in the U.S. is observed by focusing on copyright law and the U.S. Supreme Court decision. This article further analyzes the recent Supreme Court decision of Star Athletica, LLC v. Varsity Brands Inc. case, as well as the famous Supreme Court decision on the standard of copyright ability-Feist Publications, Inc., v. Rural Telephone Service Co. Next, this article inspects intellectual property protection of fashion design in Thailand and analyzes two Supreme Court judgments-the silk elephant doll case and the bas-relief (basso-rilievo) of Apsara case. The last part of this article analyses potential consequences on design industry and proposes certain observations.

Intellectual Property Protection of Fashion Design

Theoretically, fashion design can be protected under many intellectual property laws; particularly trademark, design patent and copyright. Generally, trademark protects name or symbol that identifies the source of goods or services. …

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