WWW. NYLJ.COM Fashion Law VOLUME 256—NO. 50 MONDAY, SEPTEMBER 12, 2016 In Luxury Fashion, The United States Is a Pirate BY HARLEY LEWIN AND JAMES DONOIAN uxury fashion is all about design. After design, come quality mate- L rials and workmanship, execu- tion, branding, marketing and sales. But it starts and ends with the creative vision—the design—the protection of which is the lifeblood of the industry. China, for years the epicenter of fakes and copies of fashion products— especially luxury products—is not alone. Because of a huge, unclosed gap in domestic intellectual property laws, the United States is itself a pirate nation. Contrary to public perception, most designers are constantly on the edge iSTOCK of failure. First, they seek money to get their initial collections up and run- at least some money from their initial Internet and other technology have ning, Then, they need money to get efforts to keep the lights on. It is often removed time from the equation. Within the goods made (factories live on this touch and go. weeks of the original appearing on a basis). Having passed these barriers, Making the process, and achieving fashion week runway or other product more established designers immedi- success, more difficult, the fashion launch, fast fashion will have a copy on ately start working on next season’s world is remarkably fast-paced and the shelves. Bear in mind, we are not collection and, they hope, have earned seasonal. Trends and designs rapidly talking about counterfeits, but what are evolve. Designers have little time to pro- known as knock-offs, “red carpet copy- tect themselves or build a brand. Wait- cats” or “our version of … .” Perhaps HARLEY LEWIN and JAMES DONOIAN are brand pro- ing in the wings, so-called fast fashion even more harmful, when the legitimate tection partners with McCarter & English in New York. companies are quick to pounce. The designer goods arrive on retail shelves, MONDAY, SEPTEMBER 12, 2016 they are already perceived as stale by The Supreme Court has agreed to leaving in the public domain every consumers exposed to the fast-fashion consider this most vexing issue in design ever created prior to enact- knock-offs. granting cert in Star Athletica v. Var- ment of the bill. The bill failed to get IP protection in the United States for sity Brands, where plaintiff is assert- to a floor vote. Each year thereafter, designers and their creations simply ing protection over the design of its a similar effort has failed, for lack of does not reflect today’s reality of light- cheerleading uniforms. Nonetheless, bipartisan support and/or by reason ning fast digital applications to copy, it is doubtful anything will come close of the lobbying efforts of those who manufacture and sell others’ designs to realistically closing the gap between benefit from the status quo and who via e-commerce platforms. The com- the moment of creation and the time falsely argue that copying promotes mon thread among U.S. intellectual a designer has obtained protectable creativity. property rights is time. Unfortunately, rights. Missing in the United States is The lack of IP protection in the unlike for Mick Jagger and Keith Rich- a specific law eliminating time as a United States continues to damage ards, time is not on fashion’s side. factor. and hinder growth of the domestic Trademark rights attach to names, Other countries have recognized, fashion industry. The speed of fast and some design elements of a prod- and have addressed, this time warp. fashion virtually guarantees successful uct, as soon as they are used. But A notable example is the European designers will be copied before they the designer’s “look”—the assembly Design Rights law (See EU Reg. 6/2002), can get their goods to retail. The con- of elements into a unique whole or which protects product design at sequences extend well beyond that of recognizable components of a product inception (whether registered or the individual designer: Why introduce line—could be protectable with time. unregistered) and covers items that your goods or launch your new line in The Hermes Birkin bag is noticeably may otherwise have function. The bur- the United States? Why not in Europe, and instantly identifiable, for instance, den falls on the party asserting such where you can be better protected? but that identity and consumer rec- rights to prove originality, but if it Why use runway shows at all when ognition take years and marketing does, the product is protected, with no doing so makes your designs available resources to develop. Design patents time or registration element. Protec- to be copied well before you can pro- covering the ornamental features of tion accrues from day one, providing duce your originals to order? (Runway products also take time to obtain designers and manufacturers ample shows are, parenthetically, now imper- and can often be designed around to time to develop the underlying pro- iled.) Designers are grappling with this avoid any infringement. Copyrights, tective rights. The law is enormously issue worldwide, but it all comes down although available upon creation of effective with no fall off in creativity. to the United States closing the intel- the design, are not generally extended Efforts in the United States to plug lectual property gap and protecting to fashion products because of their the hole in fashion protection, focused one of its most important industries. functional nature; a coat or a dress, for on amending the U.S. Copyright Act, Until that happens, the United States example, simply covers the body. The have failed. In 2010, Sen. Charles is, and will remain, a pirate nation and copyright law requires that original art Schumer (D-N.Y.) introduced the Inno- risk its place as an industry leader. be severable from function. Thus, a vative Design Protection and Piracy little black dress would not be protect- Prevention Act (S. 3728), which was able even if a version is original with a crafted in an attempt to protect unique given designer. There has been some and original fashion designs and which evolution in extending protection to was strongly supported by the fashion 2D items such as dress art or lace pat- and design industry due to its practical terns, but copyright remains unavail- nature. The proposed bill provided a Reprinted with permission from the September 12, 2016 edition of the NEW YORK able to the vast majority of designers short, three-year term of protection to LAW JOURNAL © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 under U.S. law. new and original fashion designs, while or [email protected]. # 070-09-16-42.