New IP Protection for Fashion Industry

By on August 18, 2017

Kimberly A. Warshawsky, Ballard Spahr LLP

Fashion brands in the United States have no specialized laws to protect their designs and innovations. They must rely upon existing intellectual property laws to protect what they create. They have increasingly relied upon design patents and trade dress to protect and enforce their rights, but often the industry has moved on to something new by the time the design patent issues, and trade dress requires proof of secondary meaning.

In its March 2017 decision, in Star Athletica, LLC v. Varsity Brands, the Supreme Court held that design features can be afforded copyright protection, provided the design (1) could be seen as a work of art separate from the “useful article” upon which it was placed and (2) would otherwise qualify for protection under the Copyright Act.

The Court expressly abandoned the distinction between “physical” and “conceptual” separateness between the design and the useful article. Instead, the Court ruled that a design element is “separate” from an article’s utilitarian aspects for purposes of Section 101 if the design or feature can exist as its own pictorial, graphic or sculptural work that is not itself useful once separated.

Star Athletica provides fashion brands with the option to protect designs and artistic elements in an affordable and straightforward manner. The Supreme Court has provided much needed clarity and consistency for those seeking registrations and enforcement, which means that designers and fashion brands can better plan their IP and protection strategies.

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