Intellectual Property Laws for Fashion Designers Need No Embellishments: They Are Already in Style

By Holton, Paige | Journal of Corporation Law, Winter 2014 | Go to article overview

Intellectual Property Laws for Fashion Designers Need No Embellishments: They Are Already in Style


Holton, Paige, Journal of Corporation Law


  I. INTRODUCTION  II. BACKGROUND      A. The Fashion Industry Generally      B. The Current Framework for Intellectual Property Protection         of Fashion Designs         1. Current Trademark Protection Framework         2. Current Copyright Protection Framework         3. Current Patent Protection Framework III. ANALYSIS      A. How Fashion Design Infringement Cases Are Resolved Under the         Current Intellectual Property Framework         1. Trademark Case Examples         2. Copyright Case Examples         3. Current Patent Examples      B. Fashion Forecast: Proposals for More Intellectual Property         Protection for the Fashion Design Industry         1. Is the Structure of the European Union Community Design            Regulation in Style?         2. The Innovative Design Protection and Piracy Prevention            Act (IDPPPA)      C. Proposals for No Intellectual Property Protection for Fashion         Design Companies  IV. RECOMMENDATION      A. IP Protection Should Remain at the Status Quo; "If it Ain't         Broke, Don't Fix it"         1. Copying Can Accelerate the Business Cycle and Promote            Innovation and Fast Fashion         2. Keeping IP Protection at the Status Quo Keeps Costs Lower      B. How Do the Most Valuable Fashion Design Companies Maintain         and Protect Their Brands?   V. CONCLUSION   APPENDIX 

I. INTRODUCTION

On August 13, 2012, Lululemon Athletica, Inc. filed suit in federal court in Delaware, accusing PVH Corporation's Calvin Klein of infringing three patents on the design of one of its specific lines of yoga pants. (1) Lululemon alleged that Calvin Klein infringed on the unusual waistband and design of its "Astro" yoga pant. (2) While Lululemon allowed companies to copy its products in the past, the company finally decided to take a stand. (3) Jeremy de Beer, an intellectual property expert and law professor at the University of Ottawa, said Lululemon is using a business strategy in trying to claim its stake in the industry, and a deterrence strategy in informing other companies that there will be legal consequences if designs are copied. (4) The stakes are high for Lululemon, a Canadian company with a net worth of $2.9 billion. (5) On November 20, 2012, Lululemon decided to settle the lawsuit with Calvin Klein. (6) While the settlement terms are confidential, the case still indicates that Lululemon, and other companies following Lululemon, will, in the future, take the "necessary steps to protect its assets." (7)

In a separate case filed on October 2, 2012, Chris Burch brought a lawsuit against his ex-wife, Tory Burch, for tortious interference with his brand, C. Wonder, alleging that Tory had hindered the success of his business. (8) With Chris's help, Tory has created a $2 billion clothing line. (9) Tory is now countersuing for breach of fiduciary duty, breach of contract, equitable relief, unfair competition, misappropriation of trade secrets, and deceptive trade practices. (10) The products in Chris's C. Wonder line represent many of Tory Burch's products, but at a lower price point. (11) Additionally, his stores have a similar trade dress. (12)

These recent lawsuits are just two of hundreds of fashion design lawsuits that are filed each year due to infringement of trademarks, trade dress, patent designs, and copyrighted designs. The intellectual property (IP) protection afforded to fashion designers is different than that of other creative industries. This Note evaluates the current state of IP protection for fashion designers and argues that the current regime should remain unchanged.

Part II of this Note provides an overview of the fashion design industry and the current framework for IP protections in the fashion industry. Part III analyzes case law and current proposed legislation, including a European model and the Innovation Design Protection and Piracy Prevention Act, which aim to better protect fashion design companies. …

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