Clothing Design – Copyright, Trademark and Patent

Fabric patterns can be protected under copyright law, however, the actual clothing design is generally not protected by copyright law. Trademark protection could apply to the label, iconic designs and famous designer names, and patent could apply to novel functions or ornamental designs. The reason knock-off designs and styles are readily available to consumers is because legally speaking making a direct or substantially similar copy of a clothing design, in most circumstances, is legal. Copyright law does not protect any utilitarian aspects in design.

The primary aim of US Copyright law is to encourage creativity as it directly benefits the public at large. Because the law’s intent is for the public’s benefit, not to make artists and designers wealthy, it strikes a balance between giving artists and designers enough rights to incentivize them to continue to create, and making those rights limited and temporary enough to encourage the public to adapt and elaborate on the creations in a way that advances culture, technology, and society.

Clothing Design Copyright

Copyright law aims to grant people freedom to express themselves as much as possible without fear of objection by copyright holders claiming they exclusively own the expression. Clothing design is not protected by copyright because clothing serves a utilitarian purpose. Of course good clothing design usually catches our eye and looks beautiful, but its primary purpose is to protect our bodies from the elements, keeps our feet from rocks and broken glass (not to mention discarded gum), and protects us from violating community decency standards.

Courts interpreting Copyright law have repeatedly concluded that these utilitarian uses outweigh clothing’s ornamental features. Therefore, as things that are functional and utilitarian are not protected by copyright, the cuts of dresses, sleeve length and neck openings often do not meet the requisite levels of originality to enjoy copyright protection.

 

The general rule that clothing is not protected by Copyright does have a major exception. an important case on the subject, Brandir International, Inc. v. Cascade Pacific Lumber Co. provides that “if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists.” Therefore, design features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of clothing can be protected by copyright.

When a portion of the clothing, if taken off the clothing, could independently meet the requirements for copyright protection then that portion can be protected by copyright. Sculptural belt buckles are a prime example, yet courts have reached divergent conclusions on factual matters involving the actual belt buckles.

Clothing Design Patents

In some situations, clothes and elements of clothing can be protected by patent or trademark laws. However, clothing rarely meets patent standards, and in the event it is patented, patent law will only narrowly protect the clothing design. Utility and design patents are also potentially available if a clothing design is “new and non-obvious” and provides some sort of novel function. Design patents are granted when someone “invents a new, original, and ornamental design for an article of clothing.”

Fabric Pattern Copyright

Fabric patterns and prints can be protected under copyright law if it meets the three requirements for protection: fixation, expression, and originality. Patterns and prints are granted separate copyright protection due to the fact that fabric patterns and prints exist separately from the utilitarian nature of the clothing.

However, it is not difficult to make a knock-off clothing pattern that’s different enough to deserve protection and avoid claims of copyright infringement. It is not unusual for famous designers see knock-offs of their clothing for sale almost immediately after a runway show.

 

Clothing Design Trademarks

Trademark law protects against a likelihood of confusion to customers who may think they are buying something that they are not. Trademark law does not prohibit copied designs. Trademark law prohibits copied “labels” that mislead consumers into believing a copied design is an original. Counterfeiters simply remove the label, or have a different label to avoid liability.

It is possible for a clothing design to become so well known that consumers associate that clothing design only with that designer. This is known under trademark law as acquiring secondary meaning. In such a case, the design itself can receive trademark protection. That protection will prohibit copying of the design directly. It will also allow the trademark holder to seize and destroy counterfeit copies of the product. However, clothing designs traditionally gain trademark protection after widespread sale and advertising.

The name of a clothing line, or label, would be most likely to be protected under trademark laws. Registering a trademark is through the applicable Secretary of State (for a state trademark) or the US Patent & Trademark Office (for a federal trademark). State trademark will only grant protection in that state. Federal trademark protects the mark nationally (and potentially internationally).

There are different aspects of clothing design, ornamentation, fabric design, trade dress, labeling and functionality that could affect intellectual property protection.

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