Innovative Design Protection Act Targets Fashion Knockoffs

Earlier this month, the Senate Judiciary Committee approved the Innovative Design Protection Act (IDPA), which would provide intellectual property rights to fashion designers for their work. From law firm Morgan Lewis:

“IDPA would provide three years of protection for fashion designs that ‘(i) are the result of a designer’s own creative endeavor; and (ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.’”

For your reference, three takeaways from the proposed law:

1. It would protect clothing for the first time:

“Under historic US jurisprudence, articles of clothing have generally been considered utilitarian and unprotected since the form and shape of the clothing were considered functional to its purpose regardless of the design… The Bill seeks to amend Chapter 13 of the Copyright Act which covers ‘Protection of Original Designs’ to add ‘fashion design’ as a specific type of protected design.” (Mintz Levin)

2. Protection is essentially limited to knockoffs:

“The owner of a protected design would be able to enforce its rights only with respect to a ‘substantially identical’ design that is ‘so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.’” (Morgan Lewis)

3. Passage of the measure is not a shoo-in:

“Some people think that the bill is facing an uphill battle to becoming law. There is clear support for the IDPA by designers and fashion industry lobbyists, such as the Council of Fashion Designers of America and the American Apparel and Footwear Association. However, not everyone is supportive of the IDPA, including chain stores and others selling knockoffs.” (Winthrop & Weinstine)

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