Top 5 Reasons Fashion Legislation May Still Need Some Threading~
Over the last 5 years, efforts have been made in Congress to offer further intellectual property protection to fashion designers. Currently, their best form of protection is trademark. Designers can use the "TM" on their logos and trade dresses for no charge and without federal registration--to show they are using the brand in commerce. After establishing themselves, it is recommended they do federally register, authorizing them use of the (R).
We are all about protecting one's IP, and believe innovation, creativity, and product should receive credit where credit is due. As fabulously put by Harper's Bazaar: "Fakes are NEVER in Fashion". So, with recent legislation in the U.S. House Judiciary Committee, members of the Council of Fashion Designers of America and American Apparel & Footwear Association testified for 3-year copyright protection for fashion designs. Although narrowly tailored, we find a few reasons why this legislation may still need some work:
1. Copyright Is The "Lightest" Form Of IP Protection
A piece of tangible work is technically granted copyright protection as soon as it is created. In spite of the automatic protection, attorneys do suggest federal protection/registration for those precious pieces, especially if they will be used in commerce and widespread (i.e. books, music, etc). Always protect your products!
2. Trademark Is Better
Even though the "TM" can be used without federal registration, trademark use in general is a heightened form of protection for a brand or product. It lets consumers know who created the brand, gives them an idea of its quality, and sets the brand a part from others. Policing trademarks and increasing vigilance would be a greater advantage to fashion designers, similar to what is proposed in the PROTECT IP legislation.
3. Counterfeiting Should Be Policed
Counterfeit goods span from the fashion industry to the drug scene, and is not good on either front. Heightening the vigilance of counterfeits, especially those crossing national borders would also prove beneficial to fashion designers-- primarily to prevent compromised brand integrity. True, up and coming designers do not have the ability to protect themselves in the same way the big brands do, but with the Fashion Law Institute at Fordham Law, B.A.F.F.LE.D., Lawyers for the Creative Arts, and other outlets offering help for the rising designers, guidance is certainly available. Protecting against counterfeits would prove to be a much better avenue, especially in our unique economic state, than a 3-year copyright in an ever changing market.
4. Fashion Changes Fast
Faster than we realize. As just mentioned, counterfeit vigilance is where the real protection of the brand and image come in. Copyright protection would cover a design, but not necessarily speak for the entire collection. Further, fashion and fashion trends change like clockwork. A 3-year copyright may not be as beneficial when a design can be "out of style" within months! Designs are for a season, brands are for a lifetime!
5. Different Shoppers - Different Markets
Although companies like Forever 21 have been in valid disputes for trademark infringement and causing confusion in the market, similar designs at different price points and in different markets is not the problem it appears to be. First, some stores, trends, and designers are regional --in the States and globally. Therefore, the sharing of designs and inspiration from one to another is harmless when no one will lose out on designs similar to theirs, but not in the same market. Second, many people shop at different price points for different items: designer purses, discount t-shirts, moderately priced dresses and suits, etc. Consumers like to feel they are in control and can buy what they want at whatever price they see fit, not the designer. Third, there's room in the market for everyone. With big designers serving globally, and new global designers joining the ranks all the time, there's room at the top...and in the middle as well as at the ground level. In all, without harm to the brand through counterfeiting and clouding brand integrity, there's room for everyone.
For more on fashion law and legislation, stay tuned to B.A.F.F.LE.D. as well as these other Fashion Law Faves!