Like many other 20-something fashionistas, when Gucci came out with their new mules with fur (here, here), I was obsessed and wanted them more than anything. However, I did NOT want to pay the $1000 to get them. Lucky for me, Steve Madden came out with an almost identical pair, which I immediately purchased for 10% of the Gucci price tag. That’s right – I found Steve Madden Gucci dupes for under $100 (here).
If you’re like me pre-law school, you may be wondering: how do brands get away with this? How can a brand copy another designer and sell it? In the fashion industry, this is called design piracy – when companies or individuals copy and reproduce someone else’s designs. As it stands, intellectual property protection is limited as far as fashion goes, and the fashion design must have very specific attributes to be protected. Here’s a very BRIEF overview:
INTELLECTUAL PROPERTY LAW
There are 4 types of intellectual property protection: (1) patent protection; (2) copyright protection; (3) trademark protection; and (4) trade dress protection (which is really a subcategory of trademark protection). To keep this brief, I’m going to give you a very general summary of what each of these protect, but if you’re interested in a more detailed post, leave a comment below!
There are 2 types of patents: utility patents and design patents. Utility patents are very rare in fashion, but design patents are becoming more popular. Design patents may protect the design of a product, but only if the design is novel, nonfunctional and nonobvious to a designer of ordinary skill in the art. That’s a pretty high burden, as most apparel designs are considered to be obvious and not novel.
Copyright protection is limited to the subjects outlined in 17 U.S.C § 102, which include: (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. The only one potentially applicable to fashion designs is pictorial, graphic, and sculptural works, which is defined in the statutes. To be protected under copyright law, the pictorial, graphic, or sculptural aspects of the item must be separate from the “utilitarian” aspect. This is a bit confusing – but basically, copyright MIGHT protect a unique design pattern, but would not protect the actual article of clothing.
Trademarks are governed by the Lanham Act. A trademark is statutorily defined and only covers very specific words/names/symbols that are used in commerce to identify and distinguish goods. It must be inherently distinctive and acquire a secondary meaning (which basically means the consumer associates that word with the brand). Some examples include: Louis Vuitton, Gucci, Nike, and Just Do It. Based on the statutory definition, a clothing item isn’t subject to trademark protection (although the brand name appearing on the item might be).
The Lanham Act also provides for trade dress protection. Trade dress is divided into two categories: (1) product packaging; and (2) product design. Product packaging refers to the “dressing” of a product. For example, when consumers see a package and immediately identify the source. Product design is the actual product, and to get protection, the brand must prove that the design aspect of the product has a secondary meaning. In other words, the brand must prove that consumers associate the specific design aspect with the brand. One of the most famous cases on this issue was about Christian Louboutin’s famous red soles. Because everyone associates the red bottom with Christian Louboutin, the Court held that it was a distinctive symbol that represented the brand, and as a result, it deserved protection under the Lanham Act.
Back to the Mules
With a general understanding of the different protection out there, it makes a little bit more sense why we see so many dupes of high end designers, right? It’s unfortunate for fashion designers because they put so much work and time into creating these amazing pieces for consumers, but as of right now, the law doesn’t afford them much protection.
DISCLAIMER: THIS POST IS NOT INTENDED TO PROVIDE LEGAL ADVICE. THIS POST IS FOR EDUCATIONAL PURPOSES ONLY.
If you’re interested, this case is one of the leading cases on protection in the fashion industry: Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108 (2d Cir. 2006).
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