“Imitation is the highest form of flattery,” so the saying goes – unless you are in the fashion industry and wake up one morning to find a major department store or fashion house has completely copied your ideas or products and is now making major money selling them.
What can you do to protect your fashion designs from being unlawfully used by others or even infringed upon? Axis Legal Counsel regularly represents individuals in the fashion, arts, and related entertainment industry, and this is a tough question the fashion designers regularly ask about. Read on for some tips.
The reality is that even major brands and fashion houses “borrow” new ideas, looks, designs, and even fabric prints. In Southern California, millions of dollars of settlements have resulted from major department stores or brand label infringement. As with all things in the intellectual property world, the best defense is often a good offense – taking measures to protect your designs and unique works.
One of the challenges that individuals in the fashion industry face is understanding what kinds of protections exist for fashion designs and what steps they need to take to protect themselves from having their designs unlawfully infringed. Fabric infringement happens every day. Designers and buyers for major label brands need influence too, and many regularly scout the Internet, Etsy, Pinterest, and numerous other forums, websites, and other locations for inspiration while completely trampling the rights of independent fashion designers, upcoming fashion designers, and creative artists. The first step is understanding what kind protection your fashion designs need, and how to go about getting them.
Copyrighting Protections for Fabric and Fashion Designs
When fashion designers think of protecting their designs, most think of copyright law. Copyright law protects original prints, patterns, color arrangements, and combinations of colors or elements on clothing and accessories. What cannot really be protected is the fashion design itself, unless it incorporates certain elements that can be identified separately from functional design of the clothing article itself. For example: can the item in question be sold separately if removed from the entire article of clothing? If the article has an artistic design that has nothing to do with how it functions, then it may be capable of being copyrighted. For example, a designer belt buckle that is decorative and cast in a precious metal would be copyrightable, even though the belt itself would not be copyrightable because its artistic elements are not distinct enough from its functional elements. Fabric prints, on the other hand, are a different story. The print found on the fabric of clothing is copyrightable if it meets the standards for copyright. Getting the copyright for your fashion design or fabric is a relatively straightforward process. The U. S. Copyright Office permits copyright applications to be provided in connection with a creative artistic work that is embodied in a tangible medium. If you need help getting a copyright application on file, check out the following resources:
- U.S. Copyright Office Official Website
- Axis Legal Counsel’s Copyright Registration Services – Starting at $99
Patenting Designs and Design Patents
One of the types of protections that fashion designers do not always think of, is patent. It is also possible to obtain patent protection for a design. A design patent will provide 14 years of exclusive rights to a design of a functional item. For example, a belt buckle that has a unique, new, and non-obvious design could obtain design patent protection. One of the disadvantages to obtaining a patent, however, is the amount of time it can take. Even at the soonest, a patent may take 6-9 months to issue, which may be far too long for use in cutting-edge fields like fashion. It can also be extremely expensive to bring patent infringement claims, if a patented item is being infringed. To learn more about the patent process, check out the following resources:
Trademarks and Trademarking
Trademark protection law is also available to protect names, logos, symbols, designs, packaging, trade dress, or other protectable elements. Trademark protection applies to products or services that are adorned with the trademark itself or protectable elements. The purpose of trademark law is essentially to separate “brands” so as not to cause confusion among consumers as to the origin of the product they are buying. For example, a new handbag manufacturer using the trade name “Yves Santa Laurent” or “Fendy” would infringe on the trademarks of the originals, as those names would tend to cause consumer confusion. Placing a fake label on a counterfeit article of clothing or merchandise, for example, would also be barred by trademark law as well as laws prohibiting the false designation of origin. Making replicable designs and knockoffs, on the other hand, does not necessarily violate trademark laws.
Getting the trademark in connection with your name, brand, logo, slogan, or other item is also relatively straightforward. The process begins by filing a trademark application with the U.S. Patent & Trademark Office, paying the necessary governmental fee, and then submitting the application for review by the trademark examiner. The trademark application will get it assigned to a trademark examiner who will review the application for completeness and accuracy. From there, a review will be done of other trademarks currently on the U.S. Patent & Trademark Office’s records, to see whether there are any conflicting trademarks that may bar registration. If there any conflicting trademarks, the trademark examiner may respond and issue an office action to you indicating that they cannot continue on with the trademark application as is, and will require additional information or even an entirely different mark. They may refuse the registration as well. If you’re thinking about getting a trademark in connection with your fashion design, fashion house, brand, logo, slogan, or other design, check out the following resources:
- AXIS Legal Counsel’s Trademark Registration Services (Starting at $99)
- US. Patent & Trademark Office’s TESS Page (Trademark Searches)
- TSDR – Trademark Application Status
- TTAB – Trademark Trials and Appeals Board (for Trademark Disputes)
How to Handle Fabric Infringement or Fashion Design Infringement
If you do become the victim of fabric infringement or fashion design infringement, regardless of whether you have obtain intellectual property protections for your designs or not, don’t lose hope – all is not lost. However, there are a very specific set of things that you need to do in order to protect your rights. Failing to take these steps could make it very difficult for you to pursue your claims:
- Preserve the Evidence. If you are the victim of fabric infringement or fabric design infringement, it is utterly imperative that you preserve the evidence of the infringement. We are contacted all the time by creative artists who are victims of infringement, and the number one mistake that they make is in failing to properly document and preserve proof of the infringement. Many infringers will remove all traces of an infringement the moment they become aware of the infringement taking place. This will essentially dispel all legal claims you may have for infringement, if there is no way to prove that the infringement actually occurred. Many times, individuals will take a screenshot of a particular image with their mobile phone thinking that is good enough. This is rarely the case. Proper preservation of evidence requires date stamped, time stamped full images of entire websites, including the website URL, the date of the use, and additional details. The images must be saved onto a disk, and containing the right metadata to be able to prove that as of that particular date and time, the use was being made unlawfully. In addition, many infringers do not limit their infringement to a single instance. For example, infringement can take place over social media, multiple social media accounts, online, on blogs, websites, and numerous other context. It is important to preserve the evidence in every single instance. Generally, when we represent victims of infringement, we handle the task of preserving evidence properly. If you are in doubt about how to do it, give us a call and we will be happy to help.
- Cease and Desist Demands. Once you properly preserve the evidence of the infringement, the next step in pursuing your legal claims involve issuing a cease and desist demand to the perpetrator. A cease and desist demand is a fancy way of saying a written formal legal notice to the perpetrator that unless they do a specific thing, such as stop infringing on your rights, you will take legal action by bringing a lawsuit against them seeking damages and all other forms of relief available. Cease and desist demands are generally prepared by your legal team, not you. The reason to have your attorneys do this is because the attorneys are going to have all the right statutory language, references to state and federal law, and all the other details to properly present the cease and desist demand. A properly prepared cease and desist demand is going to look a lot different than one that you might find online, or a letter that you might put together on your own. Because lawyers can instantly recognize whether a demand is prepared by another lawyer or by a client individually, it is always a good idea to put your best foot forward by making it clear to the other side that you have representation. It conveys seriousness to the other side and seriousness means that you believe in your legal claims, i.e. that your designs were unlawfully infringed upon.
- DMCA Takedown Demands. Another tool that victims of infringement typically uses what is called a DMCA Takedown Demand. DMCA stands for the Digital Millennium Copyright Act. The DMCA is a federal law that allows a copyright owner to issue a legal notice to a third-party commanding them to take down content that belongs to the individual. The third party is generally an Internet site, blog, news site, Internet registrar, or other location online. If a cease and desist demand is not practical or does not work effectively in getting the perpetrator to do what the infringer requires, generally it is a must always easier simply going to the location online and issuing a DMCA takedown and bypassing the perpetrator altogether. We generally handle DMCA takedown demands on a flat fee basis, and they are remarkably effective.
Getting Legal Help
it’s a tough world out there for creative professionals in the fashion design and fashion industry. In any industry where there is a lot of competition, infringement is everywhere you look. In addition, fashion and merchandise saying are one of the industries considered volume businesses, meaning that to become very successful, a tremendous amount of volume of sales need to occur, due to the very low margins present in in the manufacturing process. This can make protecting unique designs and unique works even all the more important. Many times, it can take a tremendous volume of sales to make a particular design profitable, and it only takes one act of infringement to deprive the true owner of the benefit of their creativity and hard work in bringing designs to a reality.
If you’ve been the victim of unlawful fabric infringement, or need assistance with protecting fabric designs, or fashion designs, contact Axis Legal Counsel today. Axis represents a variety of individuals and creative industries, including fashion, fashion design, fashion merchandising, fashion manufacturing, and brain development. We can assist you in protecting your unique works of authorship through copyrights, trademarks, or other intellectual property protections. We can also assist you in the event that you, your business, or your works have been the victim of unlawful infringement by third party. We counseled thousands of potential clients and we will be more than happy to help you. Call us today for free consultation which is 100% confidential and no risk. In as little as 10 to 15 minutes, you can have peace of mind as to your legal rights and how to proceed.
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