Every designer at some point in their career may end up being confronted with one of the biggest issues of "knocking off" one's designs. How can it be prevented? What can be done once it happens? MR Magazine posed these questions to esteemed fashion law expert Douglas Hand, read below to see what he had to say about dealing with this issue.
How to Protect Yourself From Knock-Offs
One of the biggest issues every designer may end up contending with at some point - especially early in his or her career - is the "knocking off" or copying of ones designs? It can be a heartbreaking moment to see all of your hard work being used by another designer. How can it be prevented? What can be done once it happens? Or is it just a fact of life to be dealt with? We posed these questions to noted fashion law expert Douglas Hand, who shared his thoughts with MR.
Q: What is the difference between trademark, copyright and patent protection, especially as it applies to design?
A: Trademark law provides protection for names, logos, slogans, or even product designs that serve as source identifiers for fashion products. For example, both the Ralph Lauren name and the polo player logo are trademarks of the Ralph Lauren Corporation and may not be used by any other organization without a license to do so.
Design patents protect the look or ornamental nature of a design, so long as it is novel, non-functional, and non-obvious. It is not uncommon for the designs of handbags, shoes, and jewelry designs to be the subject matter of design patents. Because clothing designs are considered predominantly useful, they typically do not fall within the protections afforded by design patents. For most articles of apparel, and even some accessories, design patents are not a feasible option because of the resources and time required to prosecute the patent before the US Patent and Trademark Office. The process of applying for a design patent can take several years, which exceeds the life of expectancy of the market for most designs.
Copyright protection is limited as it does not protect "useful articles" such as clothing. So it only coveres limited categories of fashion design, namely: fabric patterns (of sufficient originiality); images affixed to garments; some embroidery, beading, and lace; originial jewelry; and certain elements of "faniciful" costumes. There is a case in front of the Supreme Court right now (Star Athletica v Varsity Brands- regarding, of all things, cheerleader uniforms) which may add more color to copyright protection for fashion designs. Head over to MR Magazine for the full report.
Source: MR Magazine