If you are a member of the fashion industry, protecting your intellectual property can be the difference between success and failure. It is vitally important to understand the different types of available intellectual property protection and what each can effectively protect.
Trademarks can take many forms but are indicators to consumers that a certain product originates from a specific source. Brand names and slogans are typical trademarks, but sounds, smells, and even colors can function as trademarks. Trademark rights are established in the U.S. by using the mark.
It is very important to conduct a trademark search before starting to use a trademark to determine if there is someone already in the market using a similar mark that may assert their rights against you. Depending on the importance of the mark, there are various levels of searches that can be performed. For example, if the mark is for the essential brand name, then it is worthwhile investment to run a comprehensive search through a search agency that covers all federal trademark registrations, state law registrations, common law uses, business names, social media accounts, domain names and websites.
Trademark owners can register their mark with the United States Patent and Trademark Office (USPTO), and federal trademark protection can extend as long as the mark remains in use in relation to the products for which it is registered. Once you have a trademark registration, it is important to monitor the marketplace to ensure that no one else starts using a similar mark that would infringe on your rights.
In the fashion industry, designers frequently rely on their own name as their brand name, a la Calvin Klein, Donna Karan, etc. But in trademark law, a personal name can only be protected as a trademark if the public has come to see that person’s name as the source of the fashion products on which it is branded. This level of recognition does not happen quickly, typically only after extensive advertising and promotion as a brand name. Importantly, a designer just starting out in the industry must also take care to understand who owns the rights to their name as a brand, because an employer trying to drum up the designer’s name into a brand will frequently try to protect its investment by having the designer sign over some of the rights in his/her own name!
Copyright law is commonly used to protect creative artistic output, such as photographs, music, and movies. However, it can also be used to protect fabric designs, jewelry, and portions of fashion pieces that are creative yet can be separated conceptually from their functional elements (e.g., the ornateness of a belt buckle). In order to obtain a copyright registration, the creation must possess a certain modicum of creativity. Copyright registrations are inexpensive to obtain, and last for an extremely long period of time. The registrations give their holder the ability to sue for infringement in federal courts and to obtain heightened “statutory” damages (regardless of the size of the infringer’s profits) and attorneys’ fees, among other benefits. It is very important to register a copyright as early as possible, as in most cases statutory damages and attorneys’ fees are available as remedies if the creator discovers an infringement before registering a copyright in their creation.
There are two types of relevant patents—utility patents (which protect functional inventions and methods) and design patents (which protect ornamental design of a product).
Trademark Protection for the Fashion
by Barry Lewin