JD Insider | Fashion Law Episode 1

JD Insider | Fashion Law Episode 1

By Eve Chowdhury

On this week’s episode of JD Insider, Eve Chowdhury walks us through the importance of fashion law and its various forms.

Read the full post below:

Okay, I see. You think this has nothing to do with you. You go to your closet and select, I don’t know, that lumpy blue sweater, for instance, because you’re trying to tell the world that you take yourself too seriously to care about what you put on your back. 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 who showed cerulean military jackets, and cerulean quickly showed up in the collections of 8 different designers. And then it filtered down to the department store, and then trickled on down into some tragic Casual Corner where you – no doubt – fished it out of some clearance bin. However, that blue represents millions of dollars and countless jobs and its 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, from a pile of… stuff.[1]

Part I: Introduction and Background on the Fashion Industry

The United States gained $102.82 billion from the fashion industry in 2018,[2]and has consistently been gaining more and more revenue from the fashion industry in the past years, with an expected annual growth rate of 7.2%, resulting in a market volume of $145.72 billion by 2022.[3]To put this in perspective, the United States gained $43 billion in 2017 from Hollywood,[4]the largest film industry in the world in revenue,[5]$99.05 billion from its auto industry, including motor vehicle and parts retailed,[6]and $136 billion from its oil and gas industry.[7]This means the U.S. garners greater revenue from the fashion industry than from the film and auto industries, and is just under the oil and gas industry. In fact, the fashion industry is one of the top 10 industries in the U.S. “with the most projected growth in employment opportunities through 2026.”[8]

New York City is one of the fashion capitals of the world and is the headquarters for more than 900 fashion companies.[9]Fashion shows and showrooms “attract more than half a million visitors annually” to New York.[10]The total annual economic impact from New York Fashion Week is close to $900 million and “surpasses events such as the New York City Marathon ($340 million in 2010), the 2014 Super Bowl in New Jersey (about $550 million) and the U.S. Open (about $800 million).[11]

In addition to the revenue the fashion industry generates for the U.S., it also generates jobs and promotes creativity.[12]The fashion industry employs “more than 1.8 million workers across the country,” and the “number of people working as fashion designers in the U.S. has grown by nearly 50 percent in the past 10 years.”[13]Beyond New York City and Los Angeles – the two highest concentrations of fashion designers in the U.S. – San Francisco, Oakland, San Diego, Dallas, Kansas City, Columbus, and Nashville are starting to produce more and more fashion designers.[14]Further, as the industry has evolved and become larger, there have been a wider range of jobs that have developed specific to the fashion industry including research and development, design, and marketing.[15]The fashion industry has grown so much that “more than 200 postsecondary schools across the U.S. offer fashion-related programs.”[16]Many of those schools also include opportunities for students to work together to design and showcase with students from other schools in other states,[17]allowing for an innovative collaboration that would not otherwise take place.

Bearing in mind the revenue generation, job production, and creativity propeller, it is safe to say the fashion industry is a vital industry to the United States,[18]and such an important industry should be protected by the laws of this country. As fashion growth and economic impact relies on its consumers purchasing new products, fashion designers need to create new designs or pieces to intrigue consumers into purchasing new garments. Therefore, ultimately, fashion relies on innovation, and it is the innovation of new fashion designs that need to be protected.

As the law stands now, fashion designs are not fully protected. This paper will argue that Congress should adopt bills that allow for further copyright protection of fashion designs and garments. To do this, part two of this paper will delve into the different forms of legal protection afforded to fashion designs – patents, trademarks, and copyrights. Part three will discuss why copyright is the most effective means of protection. Part four will discuss some pertinent cases in fashion with copyright infringement claims, their legal analyses of the statutes, and bills currently pending in Congress to address these issues. Part five of this paper will conclude that Congress should adopt the Innovative Design Protection Act of 2012.

Part 2: Fashion Law – Legal Protection for the Fashion Industry

Fortunately, fashion law is a very hot niche field of law that is gaining momentum as the fashion industry evolves.[19]The practice of fashion law consists of ntellectual property and commercial matters to various fashion-related agencies.[20]“It covers everything from branding, protection, and enforcement of intellectual property rights to the non-contentious commercial side of the business, such as licensing, manufacturing, and distribution contracts and agency and franchising agreements.”[21]This paper will consider solely the intellectual property rights, rather than the commercial matters.

Fashion’s innovation lies in its designs. The law protects these innovative designs through intellectual property, which can be broken down into three facets: copyright law, trademark law, and patent law.[22]Copyright protects original works of authorship, with the caveat that the work cannot have a physical useful function.[23]Trademark typically protects the logo, name, label, or short phrase used on goods or services.[24]It can also protect distinctive smells,[25]and trade dress, like the packaging, shape, and overall characteristics of a product.[26]

The last form of intellectual property protection available is through a patent. There are two main types of patents: utility patents and design patents.[27]Utility patents are the majority of patents and protect useful, novel, and non-obvious inventions.[28]While inventions like Spanx and the Wonderbra have utility patents,[29]the majority of fashion designs are better qualified for design patents. Design patents protect the new, non-obvious, and ornamental design aspect of functional items,[30]and the United States has held over and over again that clothing is, in and of itself, a functional item.[31]

While on the surface, this may seem like a comprehensive system to protect fashion, there are many pitfalls. Although producing and selling counterfeits are illegal,[32]counterfeit clothes and accessories are rampant, amounting to a $450 billion global industry.[33]However, counterfeits are not the only problem, goods that copy the design, shape, and cut of a garment, but just exclude the original brand’s logo, may be completely legal in the United States.[34]As these don’t copy the brand’s trademark, they are not counterfeits.[35]

 

Part 3: Why Copyright?

Though it seems design patents are perfectly catered to protect things like fashion designs, they are the most under-utilized tool. In 2016, the United States Patent and Trademark Office (USPTO) and U.S. Copyright Office filed 1,611,311 trademark applications,[36]533,606 copyright claims,[37]and 320,395 design patent applications.[38]This is due to the differences in the lawmakers practical thinking and the actual process fashion designers have to undergo to receive patent protection.

  1. Patent Protection in Fashion

Unlike trademarks and copyrights, which receive rights through common law protection as soon as a mark or design is created,[39]and does not need to be granted by the state, patents only receive rights after registered and upon issuance by the USPTO.[40]A design patent application must be filed within the first twelve months of the product’s introduction into the marketplace,[41]and can cost anywhere from $4,000 to $10,000, including research, legal fees, filing fees, etc.[42]A design patent can take twelve to eighteen months to obtain[43]and only lasts fifteen years, without a renewal option.[44]This is still the shortest term of protection offered.

Further, the USPTO allows users to peruse pending patent applications online, which discloses the design of the pending garment. From a paper application, a utility patent would be more difficult to recreate, but as fashion designs are majorly for aesthetic purposes, this is a major drawback. The design patents can easily be visually copied while pending application.[45]Although a patent pending design does have some rights,[46]litigation for a patent pending infringement can only happen after the patent is issued,[47]defeating the purpose of exclusive design rights. Coupled with the short lifespan that fashion items typically have (a season), design patents simply take too much time and cost too much for the benefit brands would receive from them.[48]To top this all off, a design patent has to be submitted for each different piece; a whole line cannot be protected from one design patent.[49]

The shortcomings of design patents are exemplified in the 1929 Federal Appellate Court case, Cheney Brothers v. Doris Silk Corp. At the time, the Copyright Office did not accept “patterns” as something copyrightable, so the only form of protection offered for Cheney Brothers’ annual silk fabric pattern creations were design patents. However, their patterns were not sufficiently unique from another enough to satisfy the new, non-obvious, and ornamental design threshold for design patents,[50]and it would also be cost prohibitive because they had lots of designs that were each popular for only a short period of time.[51]Doris would wait and see which of Cheney’s patterns became popular, and then reproduced them at a lower price.[52]Cheney sued Doris, but the Trial Court found for Doris,[53]and the Appellate Court affirmed.[54]

The Appellate Court found that Cheney’s designs were not entitled under law for relief, stating “in the absence of some recognized right at the common law or under Statute, a man’s property is limited to the chattels with embody his invention. Others may imitate these at their pleasure.”[55]The Appellate Court felt that the 1918 Supreme Court decision in International News Service v. Associated Press(although news is not protected through the Copyright Act, there is an economic value in news, and therefore, a company can have a quasi-property right, a limited proprietary interest, in it against a competitor who takes advantage of the information)[56]should not be interpreted broadly to apply to fashion designs.[57]The Appellate Court agreed that Cheney suffered harm, but there was no current remedy at common law.[58]The Copyright Act was eventually changed to account for fabric designs.

  1. Trademark Protection in Fashion

Trademarks, on the other hand, have become the most common tool designers use to protect their brands. Trademark rights are automatically obtained through common law if it is the first use of the mark or if the mark garners secondary meaning.[59]Owners can use the trademark symbol with little capital letters (™) without registration,[60]to alert others of their rights over the mark. If registered, owners can use the trademark symbol in a circle (®).[61]Registration does offer a stronger protection of rights, including nation-wide exclusivity, rather than the local or state wide rights obtained through common law protection.[62]Registration is also preferred if a problem arises and proceeds to litigation. The registration can conveniently happen right before the complaint is filed with the court.

Trademark registration is cheaper than patents, though more expensive than copyrights.[63]State registration can cost $100-$200 for each category[64]and $275-$375 for federal registration.[65]Working with an attorney may cost $1,500 to $2,500, depending on how complicated it is to register your mark. Word marks tend to be easier; symbols tends to be a little bit more complicated in terms of searching and so on.[66]A trademark typically takes about four to six months to obtain,[67]but can be protected through common law for an infinite amount of time, as long as the protected mark stays in use.[68]A registered trademark can obtain federal protection for 10 years, with 10 renewal terms.[69]Given the option for immediate protection, common law protection, long term of protection, and lower costs, trademark protection is a popular tool used by both established fashion houses and new fashion designers. However, please keep in mind that trademarks protect only the name, logo, or symbol – and not actually the design itself. This is why we need a stronger form of protection as readily available to the fashion industry, and copyright is perfectly positioned to do just that.

  1. Trade Dress Protection in Fashion

Not to be overlooked, encompassed in trademarks, is trade dress, another strong form of protection well suited for fashion designs. Trade dresses protect the packaging or appearance of products.[70]It was initially for product packaging, like Tiffany’s little blue boxes,[71]but has come to be a strong form of protection for iconic fashion items. Christian Louboutin’s iconic red sole, Hermès Birkin or Kelly’s bag shape, Céline luggage, and even Bottega Veneta’s woven pattern are protected forms of trademark through trade dress protection.[72]These all gained secondary meaning in the market through common law protection, meaning that that particular garment becomes so well-known to consumers that they can link the appearance of the garment with the brand,[73]and then were after registered as trademarks. Please note that trade dresses are a form of common law protection only, and once registered, becomes a part of the brand’s trademark protection.[74]

However, as perfect as trade dress protection sounds, there are major drawbacks. Because this protection relies on the piece of garment or packaging to first acquire a secondary meaning in the marketplace, this form of protection is essentially only available for established fashion houses. A new brand would not be able to establish sufficient secondary meaning to gain protection by the time a better known brand picks up on the trend and utilizes it. In fact, the latter well-known brand may be able to establish secondary meaning and receive the protection, while the small new brand is left cheated of their ingenuity. This was what happened in Wal-Mart v. Samara Brothers, when Samara Brothers, an emerging designer at the time, sued Wal-Mart for trade dress infringement of the entire line that Samara Brothers came out with.[75]

During trial, Wal-Mart admitted to buying the Samara Brothers’ line, taking pictures, and intentionally recreating them.[76]The U.S. Southern District Court of New York found for Samara Brothers, and entered judgement against Wal-Mart for millions of dollars.[77]Wal-Mart then appealed to the Second Circuit, which once again affirmed the district court’s judgement.[78]Then, the Supreme Court of the United States granted certiorari and reversed it,[79]holding under § 43(a) of the Lanham Act, that designs could never be inherently distinctive,[80]and therefore must first achieve secondary meaning to receive trade dress protection against an infringement.[81]Secondary meaning occurred when, in the minds of the public, the design had the primary significance of identifying the source of the product rather than the product itself.[82]In doing so, the Supreme Court barred unknown companies and independent designers from receiving trade dress protection, while already distinctive brands can receive protection, and then will be able to register the design elements as trademarks.[83]Essentially, trade dress is afforded to only famous marks.[84]

  1. Copyright Protection in Fashion

We therefore, are left with copyright, which is gearing up to be a strong form of protection for the fashion industry, but still needs to take a few more steps. Copyright protection is based on the belief that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property.[85]Therefore, like trademarks, copyright protection can be obtained immediately through common law, which include statewide rights.[86]It begins at the point of creation – the moment a work is fixed in tangible form.[87]It does not require the work to first be published (into the marketplace).[88]Also similar to trademarks, registering the work does offer stronger protection, especially in the face of litigation. A work can be filed for copyright protection just prior to filing a complaint with a court, and only an application is sufficient to withstand the complaint. An approved registration can be later added in to strengthen the complaint.[89]

Copyrights are the cheapest form of protection. The cost of registering a work with the Copyright Office is $35-$50[90]or $250-$500 including legal fees.[91]Further, an entire fashion line can be copyrighted with a single application, if part of the same collection.[92]If created by an individual, copyright protection lasts for the life of the author plus 70 years.[93]If the work is owned by a corporation, the work lasts for either 95 years after publication (the work is introduced in the marketplace) or 120 years after creation, whichever comes first.[94]Registration typically takes five months to one year to complete.[95]With all of these advantages of copyright, including the immediate protection, low registration cost, ease of registration, and long protection life, copyright is one of the best tools fashion designers have to protect their artistic fashion designs. The law itself is coming closer to protect more and more fashion designs, it just needs to evolve a bit more for sufficient protection.

Part 4: Copyright It Is

In order for a work to be protected by copyright law, the thing must be an original work of authorship[96]fixed in a tangible medium.[97]According to the Copyright Act of 1976, codified in Title 17 of the United States Code, copyright protection is afforded for the following types of works: literary, musical, dramatic, pantomimes and choreographic works, pictorial, graphic, and sculptural works, audio-visual works, sounds recordings, derivative works, compilations, and architectural works.[98]Fashion protection through copyright is classified in the pictorial, graphic, and sculptural work category.[99]

However, courts have struggled with including fashion designs as pictorial, graphic, and sculptural works. Courts have held time and time again that fashion garments were not copyrightable, because of the inherent usefulness of clothing, but differ when there are some features that may be copyrighted at different times and in different scenarios.  In 1934, the U.S. District Court for the Southern District of New York (SDNY) held a drawing of a dress was copyrightable, yet the dress itself was not, so there was no infringement when defendant created the dress that was showcased in plaintiff’s dress drawing.[100]Then in 1959, after other cases expanded the definition of “art” and the congressional intent of the copyright statute, the same court held that a design printed upon dress fabric is copyrightable.[101]

In 1980, SDNY held that a belt buckle design can be copyrighted as jewelry because its design can be conceptually separated from the functionality, because some people would wear the buckles as jewelry pieces.[102]SDNY also focused on the fact that these buckles were made from silver, which the court viewed as inherently artistic,[103]as opposed to inherently functional. Although these latter two cases do find copyrights to be valid, the courts seem to be treading on a fine line and justifying their decisions in ways to limit the protection.[104]It is almost as if courts see the immoral aspect behind copying fashion but do not yet know how or if they should legally protect fashion, and if so to what extent.[105]These copyrights were valid when the design could physically be lifted from the garment[106]and when the registration was for jewelry[107]– not clothing.

Until just last year in 2017, copyright law did not protect clothing and accessories because of their useful properties.[108]In Star Athletica v. Varsity Brands, the Supreme Court of the United States ruled that aesthetic fashion designs can be protected via copyright if they can be separated from the usefulness of an article of clothing either physically or mentally[109](the “separability concept”). The U.S. Copyright Office notes that although copyright does not protect useful articles, it may protect “any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus, a useful article [like clothing] may have both copyrightable and uncopyrightable features.”[110]Brands may be able to claim a bit more protection under copyright law, but it is still largely unclear where exactly the courts will draw the line for protection.[111]In late March 2017, Puma SE filed a lawsuit against Forever 21, alleging many claims including copyright infringement.[112]To substantiate Puma’s copyright infringement claim, they cited the separability concept from Star Athletica,and was the first case to do so.[113]However, the U.S. District Judge ruled against Puma SE,[114]keeping the state of copyright protection in limbo.[115]

Regardless, copyright has been the form of intellectual property that has been expanded many times to extend protection to encompass more works, exemplified in Star Athletica, and for longer periods of time.[116]Copyright is the one that legislators and courts seem most willing to expand. For example, as a result of design patents failing to protect Cheney Brothers, copyright was extended to include designs,[117]rather than the costs and standards for design patent protection to be lowered. In another instance, in Wal-Mart, when the Supreme Court ruled that trade dress only applies to designs that had acquired a secondary meaning, the Court mentioned that these designs could be protected through copyright.[118]Judges have noted that this lack of protection of fashion designs may be a matter for legislators to adopt, rather than trying to expand the current laws through case law.[119]

There have been seven bills in the past that unsuccessfully attempted to extend legislation to better protect fashion designs. The first bill was introduced to the House on March 30, 2006 titled “To amend title 17, United States Code, to provide protection for fashion design.”[120]Imaginatively, the bill wanted to extend copyright protection to fashion designs.[121]Additionally, this extension was to be only applicable to those fashion designs on useful articles,[122]like clothing, if registered within three months after being made public,[123]and give these fashion designs a copyright protection of three years.[124]Among other propositions, the bill stated that an infringement must have been intentional or if the re-creator reasonably should have known the good was protected by copyright,[125]and extended the definition of infringing articles to “include any article the design of which had been copied from an image of a protected design without the consent of the owner.”[126]It also increased allowable damages for infringement of original designs.[127]

Since this first bill in 2006, to the last one in 2012, the bills progressively became less restricted and gave up protection as they progressed, as each one had been unsuccessful. Of these seven, two recent ones made it further than others. In August 5, 2010, the Innovative Design Protection and Piracy Prevention Act (ID3PA) was introduced to the Senate[128]and expanded upon the demands the first bill proposed. IDP3A defined apparel as clothing, handbags, belts, and eyeglass frames.[129]It also extended the term of protection to 3 years for a fashion design,[130]and excluded those designs in an useful article (like clothing) that were registered for copyright three years before the date of a copyright infringement case.[131]It revised the pervious provisions about when an infringement is made to say those “without knowledge, either actual or reasonably inferred from circumstances,” does not constitute an infringement.[132]It also included a higher standard, stating that a fashion design is not deemed to be copied from a protected design “if it (1) is not substantially identical in overall visual appearance to and as to the original elements of a protected design; or (2) is the result of independent creation.”[133]The Senate Committee unanimously voted for ID3PA to proceed to the Senate floor,[134]the furthest any of the design bills had gotten.[135]Although the bill was very popular among the fashion community,[136]the bill was placed on the Senate Legislative Calendar in December 2010,[137]and did not proceed forward.[138]

The second bill that gained a lot of traction was the last bill entitled the Innovative Design Protection Act of 2012 (IDPA), introduced to the Senate Committee on September 10, 2012 with ten co-sponsors.[139]It contained everything that ID3PA did, but modified the infringement criteria so that telecommunications services cannot infringe.[140]It also raised the standard of finding a design to infringe on a protected design to be “substantially identical in overall visual appearance to and as to the original elements of a protected design,”[141]allowed a twenty-one day grace period for an alleged violator before the original creator filed a lawsuit,[142]and lowered the amount of damages that can be recovered.[143]All of these changes are better for those that are not in favor of the protection extending to fashion designs. This was also a popular bill among the fashion community,[144]as it was compromising and seen as something critics of the previous bills may be willing to agree to.[145]However, IDPA ultimately failed as well, with no action after it was placed on the Senate Legislative Calendar on December 20, 2012.[146]

Part 5: Fashion Design Protection in the European Union

The previous bills to protect fashion designs would have strengthened the integrity of the fashion industry, if enacted. Some version of the IDPA would provide a period of protection for original  fashion designs whether on a useful item or not,[147]and would span over everything from underwear to accessories (including but not limited to purses, shoes, glass frames, hair accessories, gloves, scarves) to clothing.[148]This is similar to the current fashion and design protection in effect in the European Union.

In contrast to the minimal protection afforded under U.S. intellectual property laws, European law offers enhanced protection both at the national and European Union levels.[149]There have been multiple directives adopted by the EU in the past that make up the current expansive protection of fashion designs. The Directive of the European Parliament and of the Council on the Legal Protection of Designs (hereinafter referred to as “EU Designs Protection Directive” or “Directive”)[150]provides a regulatory framework for the protection of designs by registration in the European Union.[151]The Directive defines design as “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation.”[152]To qualify for protection, a design must be new and have individual character, meaning that “the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter, and … those features of the component part fulfill in themselves the requirements as to novel and individual character.”[153]

Additionally, Directive 6/2002 allowed for designs to receive protection for registered rights for five years with a possible renewal for twenty-five years, and for unregistered rights for three years.[154]Registered and unregistered refer similarly to registered and common law rights, respectively, to the United States. Directive 2004/48/EC requires Member States to adopt “measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights”[155]and provides specific rights to parties who reasonably show infringement of their intellectual property rights to prevent such goods from “entry into or movement within the channels of commerce.”[156]Council Regulation 1383/2003 provides a legal mechanism for custom authorities to take action on goods that may infringe IP rights.[157]In addition to EU protection, European national IP laws, particularly in the United Kingdom,[158]France,[159]Italy,[160]Germany,[161]and the Netherlands[162]provide additional rigorous protection.

Part 6: Conclusion

Fashion is one of the largest industries responsible for a chunk of the United States’ economy.[163]However, the current laws of the United States leave fashion designs vulnerable to copying, imitating, and reproducing. Trademark law is the most popular form of protection, encompassing trade dress. However, though trade dress protects the appearance of a garment, the garment must first acquire a “secondary meaning” in the market, meaning that that particular garment becomes distinctive such that consumers can link the appearance of the garment with the brand.[164]This form of protection is only truly afforded to famous marks. And so, emerging designers can only use trademark to protect the name or logo of brands,[165]allowing the design of the garment or accessory to be duplicated.[166]Design patents seem to be the answer to save fashion designs, but due to the cost and time it takes to patent a design in comparison to a clothing piece’s longevity, they are not as useful to fashion brands.[167]

Copyright is the best form of protection that fashion designs have, and it has slowly been expanding overtime.[168]It currently protects fashion designs on useful articles, like clothing, if the design itself can be visually or physically separated from the useful article. There have been multiple bills that have attempted to extend the protection of fashion designs but have all failed. If expanded further to encompass more terms, such as the EU, the level of protection afforded to fashion designs in the U.S. would match other parts of the world, where fashion plays a similarly large role in the economy. If legislative efforts continue to be ignored, the EU will continue to be the wheelhouse for fashion design creation, and the United States will continue to follow in its shadows, with more fashion designers leaving the United States to pursue careers in Europe.[169]

[1]Miranda Priestly, Devil Wears Prada(Fox 2000 Pictures 2006).

[2]Fashion, Statistica, https://www.statista.com/outlook/244/109/fashion/united-states. (last visited Dec. 9, 2018).

[3]Fashion, Statistica, https://www.statista.com/outlook/244/109/fashion/united-states. (last visited Oct. 20, 2018).

[4]David Robb, U.S. Film Industry Topped $43 Billion In Revenue Last Year, Study Finds, But It’s Not All Good News, Deadline(Jul. 13, 2018), https://deadline.com/2018/07/film-industry-revenue-2017-ibisworld-report-gloomy-box-office-1202425692.

[5]Leading film markets worldwide in 2017, by gross box office revenue (in billion U.S. dollars), Statistica, https://www.statista.com/statistics/252730/leading-film-markets-worldwide–gross-box-office-revenue/. (last visited Oct. 20, 2018).

[6]Revenue from U.S. motor vehicle and parts retail trade between 2000 and 2017 (in billion U.S. dollars), Statistica,https://www.statista.com/statistics/531522/revenue-of-us-motor-vehicle-and-parts-retail-trade. (last visited Oct. 20, 2018).

[7]Oil and gas revenue in the United States from 2000 to 2017(in million U.S. dollars), Statistica,https://www.statista.com/statistics/294614/revenue-of-the-gas-and-oil-industry-in-the-us. (last visited Oct. 20, 2018).

[8]SeeAlison Doyle, Top 10 Industries That Make America Great, The Balance Careers(Oct. 11, 2018), https://www.thebalancecareers.com/industries-that-make-america-great-4136741.

[9]Staff of Joint Economic Committee, 114th Cong., The Economic Impact of the Fashion Industry3 (Comm. Print 2015).

[10]Staff of Joint Economic Committee, 114th Cong., The Economic Impact of the Fashion Industry3 (Comm. Print 2015).

[11]Staff of Joint Economic Committee, 114th Cong., The Economic Impact of the Fashion Industry3 (Comm. Print 2015).

[12]See generally Staff of Joint Economic Committee, 114th Cong., The Economic Impact of the Fashion Industry(Comm. Print 2015).

[13]Staff of Joint Economic Committee, 114th Cong., The Economic Impact of the Fashion Industry2 (Comm. Print 2015).

[14]SeeStaff of Joint Economic Committee, 114th Cong., The Economic Impact of the Fashion Industry4 (Comm. Print 2015).

[15]SeeStaff of Joint Economic Committee, 114th Cong., The Economic Impact of the Fashion Industry5 (Comm. Print 2015).

[16]Staff of Joint Economic Committee, 114th Cong., The Economic Impact of the Fashion Industry4 (Comm. Print 2015).

[17]Fashion Future Graduate Showcase, CFDA, https://cfda.com/programs/designers/fashion-future-graduate-showcase. (last visited Oct. 20, 2018). (“The invited colleges are Fashion Institute of Technology, Parsons School of Design, Pratt Institute, Academy of Art University, California College of the Arts, Kent State University, Rhode Island School of Design, and Savannah College of Art and Design.”).

[18]See generally Staff of Joint Economic Committee, 114th Cong., The Economic Impact of the Fashion Industry(Comm. Print 2015).

[19]See Judith Earley, Law Students With An Additional Interest In Fashion Can Opt For Fashion Law, Law Crossing, https://www.lawcrossing.com/article/1720/Fashion-Law/. (last visited Oct. 20, 2018).

[20]See Judith Earley, Law Students With An Additional Interest In Fashion Can Opt For Fashion Law, Law Crossing, https://www.lawcrossing.com/article/1720/Fashion-Law/. (last visited Oct. 20, 2018).

[21]Judith Earley, Law Students With An Additional Interest In Fashion Can Opt For Fashion Law, Law Crossing, https://www.lawcrossing.com/article/1720/Fashion-Law/. (last visited Oct. 20, 2018).

[22]See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[23]See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[24]See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[25]See Protecting Scent Trademarks (1): Practically possible in the US – Rather difficult in the EU, Patent Attorneys & Attorneys at Law Dr. Meyer-Dulheuer & Partners LLP(Jun. 7, 2018), https://info.legal-patent.com/trademark-law/scent-trademark-us-and-eu/.

[26]Trade dress, Wikipedia, https://en.wikipedia.org/wiki/Trade_dress. (last visited Oct. 20, 2018).

[27]See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[28]Patents: Make Sure Your Idea is Useful, Novel, and Non-Obvious, FindLaw, https://smallbusiness.findlaw.com/intellectual-property/idea-must-be-useful-novel-or-non-obvious.html. (last visited Oct. 20, 2018).

[29]See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[30]See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[31]See Megan Garber, ‘What are Clothes?’ Asks Most Delightful Supreme Court Argument in History, The Atlantic(Nov. 5, 2013), https://www.theatlantic.com/technology/archive/2013/11/what-are-clothes-asks-most-delightful-supreme-court-argument-in-history/281155/ (quoting Justices Kagan and Scalia describing the various functions clothing has, particularly protective and sanitary); see also Whimsicality, Inc. v. Rubie’s Costumes Co., 721 F. Supp. 1566, 1572 (E.D.N.Y. 1989) (“First, it is accepted copyright law that a garden variety article of wearing apparel is intrinsically utilitarian and therefore a noncopyrightable useful article. Equally noncopyrightable are the elaborate designs of the high fashion industry, no matter how admired or aesthetically pleasing they may be.”); see alsoBrandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1147 (2d Cir. 1987)(“Form and function are inextricably intertwined in the rack, its ultimate design being as much the result of utilitarian pressures as aesthetic choices.”).

[32]See Buying Counterfeit Goods: Laws and Resources, FindLaw, https://consumer.findlaw.com/consumer-transactions/buying-counterfeit-goods-laws-and-resources.html. (last visited Oct. 21, 2018).

[33]Sarah Shannon, Fighting the $450 Billion Trade in Fake Fashion, Business of Fashion(Mar. 2, 2017), https://www.businessoffashion.com/articles/intelligence/fighting-the-450-billion-trade-in-fake-fashion.

[34]See Chavie Lieber, Fashion brands steal design ideas all the time. And it’s completely legal., Vox(Apr. 27, 2018), https://www.vox.com/2018/4/27/17281022/fashion-brands-knockoffs-copyright-stolen-designs-old-navy-zara-h-and-m.

[35]Please note the differences between a counterfeit, infringement, and a duplicate or knock-off. Counterfeits are used when talking about products that copy the exact product of another brand and include the trademarked logo and/or name, in hopes of passing off the fake good as the real one. (See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.) An infringement refers to goods that have copied copyrighted or patented designs, but not the trademarked logo of the original product. (See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.) A duplicate is like an infringement but the original designs may not have been yet registered for copyright or patent protection.

[36]Statistical Country Profiles: United States,World Intellectual Property Organization, http://www.wipo.int/ipstats/en/statistics/country_profile/profile.jsp?code=US. (last visited Nov. 1, 2018).

[37]United States Copyright Office, Fiscal 2016 Annual Report, https://www.copyright.gov/reports/annual/2016/ar2016.pdf. (last visited Nov. 1, 2018).

[38]Statistical Country Profiles: United States,World Intellectual Property Organization, http://www.wipo.int/ipstats/en/statistics/country_profile/profile.jsp?code=US. (last visited Nov. 1, 2018).

[39]See generally Kelley Keller, Trademarks, Copyrights and Common Law: Possession is Only Nine-Tenths of the Law, Kelly Keller Esq. (Jun. 13, 2018), http://kelleykeller.com/the-limitations-of-common-law-possession-is-only-nine-tenths-of-the-law/.

[40]Professor Guillermo Jimenez, Fashion Institute of Technology, Brooklyn Law School, NYU Stern Graduate School of Business, ISM Paris, Class Lecture in Fashion Law (Aug. 29, 2018).

[41]Design Patent Cost: Everything You Need to Know, UpCounsel, https://www.upcounsel.com/design-patent-cost. (last visited Nov. 1, 2018)

[42]See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark. (“Design patents are a little cheaper — maybe we’re talking more like $4,000 or $6,000.”);see also Currently Trending in Fashion: Design Patents, The Fashion Law(Jun. 23, 2016), http://www.thefashionlaw.com/home/currently-trending-in-fashion-design-patents. (“[R]eports suggest a patent (and the corresponding legal fees) will cost you upwards of $10,000”).

[43]How to Patent a Design: Everything You Need to Know, UpCounsel,https://www.upcounsel.com/how-to-patent-a-design. (last visited Nov. 1, 2018).

[44]Rich Stim, When Do Patents Begin and How Long Do They Last?, IntellectualPropertyLawFirms.com, http://www.intellectualpropertylawfirms.com/resources/intellectual-property/patent-protection/when-d (last visited Nov. 1, 2018).

[45]Professor Guillermo Jimenez, Fashion Institute of Technology, Brooklyn Law School, NYU Stern Graduate School of Business, ISM Paris, Class Lecture in Fashion Law (Nov. 14, 2018).

[46]See Patent Pending Infringement: Everything You Need to Know, UpCounsel, https://www.upcounsel.com/patent-pending-infringement (last visited Nov. 17, 2018).

[47]See Patent Pending Infringement: Everything You Need to Know, UpCounsel, https://www.upcounsel.com/patent-pending-infringement (last visited Nov. 17, 2018).

[48]The USPTO extended the term of protection for design patents from fourteen to fifteen years for patents filed after May 13, 2015, realizing the benefits afforded by patent protection are too short. (1505 Term of Design Patent [R-08.2017], USPTO.gov, https://www.uspto.gov/web/offices/pac/mpep/s1505.html.)

[49]Professor Guillermo Jimenez, Fashion Institute of Technology, Brooklyn Law School, NYU Stern Graduate School of Business, ISM Paris, Class Lecture in Fashion Law (Oct. 3, 2018).

[50]See generally Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (1929).

[51]See generally Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (1929).

[52]See Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (1929).

[53]See generally Cheney Bros. v. Gimbel Bros., 280 F. 746 (S.D.N.Y. 1922).

[54]See generally Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (1929).

[55]Cheney Bros. v. Doris Silk Corp., 35 F.2d 279, 280 (1929).

[56]See generally Int’l News Serv. v. Associated Press, 248 U.S. 215 (1918).

[57]See Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (1929).

[58]See Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (1929).

[59]Jane Haskins, What Are Common Law Trademark Rights?, LegalZoom(Aug. 2016), https://www.legalzoom.com/articles/what-are-common-law-trademark-rights. (“You acquire common law trademark rights just by using your trademark in your business.”).

[60]United States Patent and Trademark Office, Basic Facts About Trademarks 11, https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf (last visited Nov. 3, 2018). (“If not yet registered, use TM for goods or SM for services, to indicate that you have adopted this as a trademark or service mark, respectively, regardless of whether you have filed an application with the USPTO.”).

[61]United States Patent and Trademark Office, Basic Facts About Trademarks 11, https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf (last visited Nov. 3, 2018). (“However, owning a federal trademark registration on the Principal Register provides a number of significant advantages over common law rights alone, including . . . [t]he right to use the federal registration symbol “®”).

[62]United States Patent and Trademark Office, Basic Facts About Trademarks 11, https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf (last visited Nov. 3, 2018).

[63]Tyler McCall,Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[64]Jane Haskins, How Much Does it Cost to Trademark a Business Name?, LegalZoom(Apr. 2015), https://www.legalzoom.com/articles/how-much-does-it-cost-to-trademark-a-business-name.

[65]Jane Haskins, How Much Does it Cost to Trademark a Business Name?, LegalZoom(Apr. 2015), https://www.legalzoom.com/articles/how-much-does-it-cost-to-trademark-a-business-name.

[66]Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[67]Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[68]See Xavier Morales, How Long Does a Trademark Last?, SecureYourTrademark.com(Aug. 25, 2018), https://secureyourtrademark.com/blog/how-long-does-a-trademark-last/.

[69]How long does trademark protection last?,RegisteringATrademark.com, http://www.registeringatrademark.com/length-trademark.shtml (last visited Nov. 3, 2018). Please note there is some maintenance the registrant must do to keep this protection time active, such as filing an affidavit between the fifth and sixth year after the date of registration, stating that the mark is still in use.

[70]See Trade dress, Wikipedia, https://en.wikipedia.org/wiki/Trade_dress (last visited Nov. 2, 2018). (“Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another.”).

[71]Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[72]See Tyler McCall, Copyright, Trademark, and Patent Law: Your Go-To Primer for Fashion Intellectual Property Law, Fashionista(Dec. 16, 2016), https://fashionista.com/2016/12/fashion-law-patent-copyright-trademark.

[73]SeeWhy is Copying So Rampant in Fashion?, The Fashion Law(Aug. 28, 2018), http://www.thefashionlaw.com/home/why-is-copying-so-rampant-in-fashion.

[74]Professor Guillermo Jimenez, Fashion Institute of Technology, Brooklyn Law School, NYU Stern Graduate School of Business, ISM Paris, Class Lecture in Fashion Law (Sep. 26, 2018).

[75]See Wal-Mart Stores v. Samara Bros., Inc., 529 U.S. 205 (2000).

[76]See Wal-Mart Stores v. Samara Bros., Inc., 529 U.S. 205 (2000).

[77]See Samara Bros., Inc. v. Judy-Philippine, Inc., 969 F. Supp. 895 (S.D.N.Y. 1997).

[78]See Samara Bros., Inc. v. Wal-Mart Stores, 165 F.3d 120 (2d Cir. 1998).

[79]See Wal-Mart Stores v. Samara Bros., Inc., 529 U.S. 205 (2000).

[80]See Wal-Mart Stores v. Samara Bros., Inc., 529 U.S. 205 (2000).

[81]See Wal-Mart Stores v. Samara Bros., Inc., 529 U.S. 205 (2000).

[82]See Wal-Mart Stores v. Samara Bros., Inc., 529 U.S. 205 (2000).

[83]Professor Guillermo Jimenez, Fashion Institute of Technology, Brooklyn Law School, NYU Stern Graduate School of Business, ISM Paris, Class Lecture in Fashion Law (Sep. 26, 2018).

[84]See discussion infra Part 3.B.i. (naming Christian Louboutin’s iconic red sole, Hermès Birkin and Kelly’s bag shape, Céline luggage, and Bottega Veneta’s woven pattern as designs protected through trade dress).

[85]Common law copyright, Wikipedia, https://en.wikipedia.org/wiki/Common_law_copyright (last visited Nov. 2, 2018).

[86]Common law copyright, Wikipedia, https://en.wikipedia.org/wiki/Common_law_copyright (last visited Nov. 2, 2018).

[87]Copyright FAQs, IntellectualPropertyLawFirms.com, http://www.intellectualpropertylawfirms.com/intellectual-property/copyrights/faqs.htm (last visited Nov. 3, 2018).

[88]Copyright FAQs, IntellectualPropertyLawFirms.com, http://www.intellectualpropertylawfirms.com/intellectual-property/copyrights/faqs.htm (last visited Nov. 3, 2018).

[89]Professor Guillermo Jimenez, Fashion Institute of Technology, Brooklyn Law School, NYU Stern Graduate School of Business, ISM Paris, Class Lecture in Fashion Law (Sep. 12, 2018).

[90]Copyright FAQs, IntellectualPropertyLawFirms.com, http://www.intellectualpropertylawfirms.com/intellectual-property/copyrights/faqs.htm (last visited Nov. 3, 2018).

[91]Nicholas Wells, How much does a U.S. copyright registration cost?, WellsIPLaw.com, https://www.wellsiplaw.com/how-much-does-a-u-s-copyright-registration-cost/ (last visited Nov. 3, 2018).

[92]Professor Guillermo Jimenez, Fashion Institute of Technology, Brooklyn Law School, NYU Stern Graduate School of Business, ISM Paris, Class Lecture in Fashion Law (Sep. 12, 2018).

[93]Copyright FAQs, IntellectualPropertyLawFirms.com, http://www.intellectualpropertylawfirms.com/intellectual-property/copyrights/faqs.htm (last visited Nov. 3, 2018).

[94]Copyright FAQs, IntellectualPropertyLawFirms.com, http://www.intellectualpropertylawfirms.com/intellectual-property/copyrights/faqs.htm (last visited Nov. 3, 2018).

[95]Copyright FAQs, IntellectualPropertyLawFirms.com, http://www.intellectualpropertylawfirms.com/intellectual-property/copyrights/faqs.htm (last visited Nov. 3, 2018).

[96]Definition of Copyright, LegalZoom, https://www.legalzoom.com/knowledge/copyright/topic/copyright-definition (last visited Oct. 21, 2018).

[97]17 U.S.C. § 102 (2018).

[98]17 U.S.C. § 102(a) (2018).

[99]Library of Congress, U.S. Copyright Office, Copyright Registration for Pictorial, graphic, and Sculptural Works 2(Comm. Print 2015).

[100]See Jack Adelman, Inc. v. Sonners & Gordon, Inc., 112 F. Supp. 187 (S.D.N.Y. 1934).

[101]See Peter Pan Fabrics, Inc. v. Brenda Fabrics, Inc., 169 F. Supp. 142 (S.D.N.Y. 1959).

[102]See Kieselstein-Cord v. Accessories by Pearl, Inc., 489 F. Supp. 732 (S.D.N.Y. 1980).

[103]Kieselstein-Cord v. Accessories by Pearl, Inc., 489 F. Supp. 732, 733 (S.D.N.Y. 1980).

[104]Professor Guillermo Jimenez, Fashion Institute of Technology, Brooklyn Law School, NYU Stern Graduate School of Business, ISM Paris, Class Lecture in Fashion Law (Sep. 12, 2018).

[105]See discussion infra Part 3.A. (discussing the Appellate Court agreed Cheney had suffered harm, and that there should be some type of remedy, but that remedy didn’t exist at common law, and the legislative branch should probably amend copyright law to address these sorts of issues)

[106]See Jack Adelman, Inc. v. Sonners & Gordon, Inc., 112 F. Supp. 187 (S.D.N.Y. 1934).

[107]See Kieselstein-Cord v. Accessories by Pearl, Inc., 489 F. Supp. 732 (S.D.N.Y. 1980).

[108]SeeWhy is Copying So Rampant in Fashion?, The Fashion Law(Aug. 28, 2018), http://www.thefashionlaw.com/home/why-is-copying-so-rampant-in-fashion. (“[C]opyright law . . . does not protect useful things, like clothing and accessories, it has provided a rather small amount of protection for those things in their entirety to date.”).

[109]See Star Atheltica, LLC v. Varsity Brands, Inc., 580 U.S. __ (2017).

[110]Useful Articles, Copyright.gov, https://www.copyright.gov/register/va-useful.html (last visited Nov. 17, 2018).

[111]See Supreme Court Sounds Off on Copyright in Cheerleading Uniform, The Fashion Law (Mar. 22, 2017), http://www.thefashionlaw.com/home/supreme-court-says-cheerleader-uniform-is-protectable-by-copyright-law. (“As for whether the decision will actually serve to rid courts of the uncertainty associated with separability, that is still very much up for debate.”).

[112]Puma Files Patent, Copyright, Trade Dress Suit Against Forever 21 Over Rihanna Shoes, The Fashion Law (Apr. 3, 2017), http://www.thefashionlaw.com/home/puma-files-design-patent-copyright-trade-dress-suit-against-forever-21-over-rihanna-footwear.

[113]Puma Files Patent, Copyright, Trade Dress Suit Against Forever 21 Over Rihanna Shoes, The Fashion Law (Apr. 3, 2017), http://www.thefashionlaw.com/home/puma-files-design-patent-copyright-trade-dress-suit-against-forever-21-over-rihanna-footwear.

[114]Stephen Berg, Puma Loses Bid to Pull Forever 21 Shoes From Shelves, The Webb Law Firm (Jun. 5, 2017), https://www.webblaw.com/news/puma-loses-bid-pull-forever-21-shoes-shelves/.

[115]See discussion supra Part II.C.

[116]See Steve Schlackman, How Mickey Mouse Keeps Changing Copyright Law, Art Law Journal (Feb. 15, 2014), https://alj.artrepreneur.com/mickey-mouse-keeps-changing-copyright-law/;see also Timothy B. Lee, Why Mickey Mouse’s 1998 copyright extension probably won’t happen again, Ars Technica (Jan. 8, 2018), https://arstechnica.com/tech-policy/2018/01/hollywood-says-its-not-planning-another-copyright-extension-push/.

[117]See discussion infra Part 3.A.

[118]See Wal-Mart Stores v. Samara Bros., 529 U.S. 205, 214 (2000).

[119]See Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (1929).

[120]H.R. 5055, 109th Cong. (2006).

[121]H.R. 5055, 109th Cong. (2006).

[122]H.R. 5055, 109th Cong. (2006).

[123]H.R. 5055, 109th Cong. (2006).

[124]H.R. 5055, 109th Cong. (2006).

[125]H.R. 5055, 109th Cong. (2006).

[126]H.R. 5055, 109th Cong. (2006).

[127]H.R. 5055, 109th Cong. (2006).

[128]Innovative Design Protection and Piracy Prevention Act, S. 3728, 111th Congress (2010).

[129]Innovative Design Protection and Piracy Prevention Act, S. 3728, 111th Congress (2010).

[130]Innovative Design Protection and Piracy Prevention Act, S. 3728, 111th Congress (2010).

[131]Innovative Design Protection and Piracy Prevention Act, S. 3728, 111th Congress (2010).

[132]Innovative Design Protection and Piracy Prevention Act, S. 3728, 111th Congress (2010).

[133]Innovative Design Protection and Piracy Prevention Act, S. 3728, 111th Congress (2010).

[134]S 3523 – Innovative Design Protection Act of 2012, Congress.gov, https://www.congress.gov/bill/111th-congress/senate-bill/3728/all-actions?q=S.3728 (last visited Dec. 5, 2018).

[135]Design Piracy Prohibition Act, Wikipedia, https://en.wikipedia.org/wiki/Design_Piracy_Prohibition_Act (last visited Nov. 18, 2018).

[136]See Brittany Lamb, The Federal Government’s Hand-Me-Downs: The Possibility of Protecting Fashion at the State Level, 115 Colum. L. Rev. 127 (2015); see also Linna T. Loangkote, Fashioning a New Look in Intellectual Property: Sui Generis Protection for the Innovative Designer, 63 HastingsL. J. 1 (2011);see alsoSusan Scafidi, Fashion is in the House!, Counterfeit Chic(Jul. 10, 2011), http://counterfeitchic.com/2011/07/fashion-is-in-the-house.html;see also Dover Street Market: Not Merely a Store, The Fashion Law (Jul. 22, 2014), https://www.thefashionlaw.com/?offset=1406048450465.

[137]S 3523 – Innovative Design Protection Act of 2012, Congress.gov, https://www.congress.gov/bill/111th-congress/senate-bill/3728/all-actions?q=S.3728 (last visited Dec. 5, 2018).

[138]S 3523 – Innovative Design Protection Act of 2012, Congress.gov, https://www.congress.gov/bill/111th-congress/senate-bill/3728/all-actions?q=S.3728 (last visited Dec. 5, 2018).

[139]Innovative Design Protection Act of 2012, S. 3523, 112th Congress (2012).

[140]Innovative Design Protection Act of 2012, S. 3523, 112th Congress (2012).

[141]Innovative Design Protection Act of 2012, S. 3523, 112th Congress (2012).

[142]Innovative Design Protection Act of 2012, S. 3523, 112th Congress (2012).

[143]Innovative Design Protection Act of 2012, S. 3523, 112th Congress (2012).

[144]See Aya Eguchi, Curtailing Copycat Couture: The Merits of the Innovative Design Protection and Piracy Prevention Act and Licensing Scheme for the Fashion Industry, 97 Cornell L. Rev. 131, 147 (2011); see also Casey E. Callahan,Fashion Frustrated: Why the Innovative Design Protection Act is a Necessary Step in the Right Direction, But Not Quite Enough, 7 Brook. J. of Corp., Fin. & Com. L. 195 (2012).

[145]See Casey E. Callahan, Fashion Frustrated: Why the Innovative Design Protection Act is a Necessary Step in the Right Direction, But Not Quite Enough, 7 Brook. J. of Corp., Fin. & Com. L. 195 (2012).

[146]Innovative Design Protection Act of 2012, S. 3523, 112th Congress (2012).

[147]Howard D. Bader, Fashion Design Protection Law Failed Again In 2012, Ballon Stoll Bader & Nadler, P.C. (Feb. 2013), http://www.ballonstoll.com/fashion-design-protection-law-failed-again-in-2012/.

[148]Howard D. Bader, Fashion Design Protection Law Failed Again In 2012, Ballon Stoll Bader & Nadler, P.C. (Feb. 2013), http://www.ballonstoll.com/fashion-design-protection-law-failed-again-in-2012/.

[149]SeeTedmond Wong, Comment, To Copy or Not To Copy, That Is the Question: The Game Theory Approach To Protecting Fashion Designs, 160 U. Pa. L. Rev. 1139, 1148-52 (2012).

[150]Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the Legal Protection of Designs, 1998 O.J. (L 289).

[151]SeeTedmond Wong, Comment, To Copy or Not To Copy, That Is the Question: The Game Theory Approach To Protecting Fashion Designs, 160 U. Pa. L. Rev. 1139, 1148-52 (2012).

[152]Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the Legal Protection of Designs, 1998 O.J. (L 289).

[153]Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the Legal Protection of Designs, 1998 O.J. (L 289).

[154]Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Designs, art. 11-12, 2002 O.J. (L 3).

[155]Corrigendum to Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights, ch. II, § 1, art. 3, 2004 O.J. (L 195).

[156]Corrigendum to Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights, ch. II, § 1, art. 3, 2004 O.J. (L 195).

[157]Council Regulation (EC) No 1383/2003 of 22 July 2003 Concerning Customs Action Against Goods Suspected of Infringing Certain Intellectual Property Rights and the Measures To Be Taken Against Goods Found To Have Infringed Such Rights, art. 1, 2003 O.J. (L 196) 7.

[158]SeeCopyright, Designs and Patents Act1988, c. 48 (Gr. Brit.); Registered Designs Act 1949, c. 88 (Gr. Brit.); The Registered Designs Regulations 2001, SI 2001/3949 (Gr. Brit.) (implementing Directive 98/71/EC).

[159]SeeCode de la Propriete Intellectuelle [C. Prop. Intell.] [Intellectual Property Code] (Fr.) (providing comprehensive protection for designs).

[160]SeeLegge 22 aprille 1941, n. 633, G.U. July 16, 1941, n. 166 (It.) (Italian Copy Law); see also Decreto Legislativo10 febbraio 2005, n.273, C. proprieta industrial Dec. 12, 2002, n.30 (It.) (Code of Industrial Property) (granting broad copyright protection to articles of fashion and requiring industrial designs to have artistic value).

[161]SeeGesetz uber den rechtilichen Schutz von Mustern und Modellen – Geschmacksmustergesetz[GeschmMG] [Act on the Legal Protection of Designs], Mar. 12, 2004, Bundesgesetzblatt, Teil I [BGBl I] at 122 (Ger.); Urheberrechtsgesetz [UrhG] [Act on Copyright and Related Rights], Sept. 9, 1965, Bundesgesetzblatt, Teil I [BGBl I] at 1273 (Ger.) (providing copyright protection for a design if is of high artistic value and it is sufficiently novel, differing from previous designs to the extent that it is regarded as an individual intellectual creation).

[162]SeeBenelux-Verdrag Inzake de Intellectuele Eigendom25 februari 2005, Trb. 2005 (Benelux Convention on Intellectual Property); Auteurswet 23 september 1912, Stb. 1912 (Neth.) (Dutch Copyright Act).

[163]See discussion infra Part 1.

[164]SeeWhy is Copying So Rampant in Fashion?, The Fashion Law(Aug. 28, 2018), http://www.thefashionlaw.com/home/why-is-copying-so-rampant-in-fashion.

[165]SeeWhy is Copying So Rampant in Fashion?, The Fashion Law(Aug. 28, 2018), http://www.thefashionlaw.com/home/why-is-copying-so-rampant-in-fashion.

[166]SeeWhy is Copying So Rampant in Fashion?, The Fashion Law(Aug. 28, 2018), http://www.thefashionlaw.com/home/why-is-copying-so-rampant-in-fashion. (“Trademark law only protects the names/logos, etc., and not the underlying design.”).

[167]SeeWhy is Copying So Rampant in Fashion?, The Fashion Law(Aug. 28, 2018), http://www.thefashionlaw.com/home/why-is-copying-so-rampant-in-fashion. (“There is a bit of a roadblock here for many brands, as design patent protection [i]s expensive (it tends to cost thousands of dollars to achieve) and takes a relatively long time (upwards of one year) to obtain.”).

[168]See infra discussion Part 4.

[169]Why Are Designers Leaving New York? And Can We Blame Them?, The Fashion Law (Jul. 13, 2017), http://www.thefashionlaw.com/home/can-we-blame-designers-to-decamping-no-nyfw-is-a-mess.

 

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