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The Devil Wears Prada: Why Fashion Should Not Be Protected Under Patent Law
There has been much talk lately about intellectual property protection for the fashion industry, which is responsible for more than $750 billion of apparel each year globally [1]. The only type of protection currently available for fashion design is trademarks, allowing designers to protect their distinctive brands and logos from potential consumer confusion. The proposed legislation HR5055 seeks to expand copyright protection to cover fashion [2]. However, fashion is not purely an expressive element and is largely functional. Therefore, it has been proposed that fashion should be protected by patent law instead, specifically by design patents. This essay examines how fashion fit in the scope of design patents, and why patent law is not the right source of protection for fashion due to conceptual and practical difficulties.
Overview of Design Patents
Design patents cover any “new, original and ornamental design for an article of manufacture” and have a term of fourteen years from the date of grant [3][4]. Unlike utility patents, design patents do not protect how an invention is used or how it works, but only how it looks. In addition to originality, design patents are also subject to the requirements of ornamentality, novelty, and non-obviousness, which make obtaining protection even more difficult.
If the design of an article of manufacture comes mostly from its functional aspects, then it is not “ornamental” and cannot be covered under a design patent [5]. To be truly original, the ornamental design cannot be that of a known object, person, or naturally occurring form. The requirement for novelty in design patents only pertains to how the ornamentation looks to an observer; therefore an article of manufacture that is not novel for utility patentability can still be novel for design patentability purposes. The standard for non-obviousness uses a “designer of ordinary skill of the article involved” and closely mimics the standard in utility patents [6].
Applying Design Patent Standards to Fashion
Merchandise in the fashion industry is not only restricted to clothing, but covers a wide spectrum from handbags, shoes, jewelry to designer eyewear, fragrance, and other lifestyle accessories. All of these categories fit the requirement of an “article of manufacturer” in that they are not abstract designs or ideas, bur rather tangible man-made articles. However, the ornamental/utility nature of these goods varies greatly from category to category, implying that not all fashion may fit the “ornamentality” requirement of design patents. It can be argued that although clothing is functional in nature, everything pertaining to how a piece of clothing looks is ornamental for the purpose of design patents. However, this distinction becomes harder to make in other areas of fashion. For example, the metal clasp on a handbag is highly functional in the sense that it holds the bag closed, but the specific construction and design of the clasp could be for pure ornamentation purposes. Therefore, drawing the line between designs that are mainly based in its functional aspects and those that are truly ornamental can be difficult.
More problems arise when originality and novelty are considered with respect to fashion. Although a certain amount of innovation is seen on the runways every season, it can be argued that none of these innovations are truly “original” or “novel” considering the recycling nature of the fashion industry. The current trend of “skinny jeans” is not a new design, but just a revival of a popular style in the 1980s, which will likely see another resurgence years after it goes out of style. There may have been countless reincarnations of the “little black dress,” but the basic design behind it has not changed. Whereas one designer may place a bow on the back of the dress another designer may place two, and an ordinary observer would not see the dress with two bows as a novel design. While true innovation is prized in the fashion world, adherence to traditional designs is also a staple of the industry and the foundation of much of its profits.
The same difficulties can be seen when the standard of non-obviousness is applied. Taking the same example of the “little black dress,” a designer of ordinary skill in dress making could have very well have foreseen putting multiple bows instead of one on the dress. Especially when the one ornamental element is viewed in the context of the design of the dress as a whole, it seems to be the exact type of small change that the obviousness standard is meant to exclude. However, these “small changes” can actually be significant for the consumer deciding between the two dresses who might consider the two as entirely different designs.
Lastly, the term of a design patent is also ill fitted to the fashion industry. Fashion has an extremely fast turnover rate, with certain designs being extremely profitable one season and suddenly out of favor just a short six month later. Therefore, by the time a design patent is processed and granted the design could have long gone out of style. On the other hand, the fourteen year protection period would give the sole designer an unfair monopoly if the design or variations on it come in to style as in the case of the “skinny jean.” Given how fashion is consistently recycling and combining old elements together, this could lead to a form of “design patent trolling” that’s even worse than the patent trolls seen now.
Why Patent Protection is Unnecessary for the Fashion Industry
As seen above, the fashion industry should not be protected under the patent regime because it does not fit into the current standards for patentability. Proponents of fashion protection argue that the rampant piracy of fashion designs and “knock-offs” of designer goods are hurting the fashion industry and will decrease the incentives for innovation. However, despite the presence of knock-offs on the market, the fashion industry is still thriving with fashion houses like Armani experiencing a 22.7% net profit increase in 2005 [7].
In their article “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design” Raustiala and Sprigman explain this phenomenon by proposing fashion operates in a low-IP equilibrium, and does so successfully because copying allows for a process of “induced obsolescence” which speeds up the fashion cycle with styles constantly going in and out of style. This in turn actually encourages innovation in the fashion industry as a whole, encouraging designers to come up with new designs to satisfy consumers. In addition, Raustiala and Sprigman suggest a low-IP regime helps the industry establish trends through a process of “anchoring,” where copying allows each season’s new designs to quickly gain recognition amongst consumers and in turn accelerates the fashion cycle [8].
In addition to the explanations set forth by Raustiala and Sprigman, there are other reasons why fashion does not need further IP protection. Not only does copying foster the fashion cycle and encourage innovation, the fashion houses and designers themselves engage in a large amount of copying by borrowing from past trends and their competitors. In addition, a large amount of fashion design involves “status goods” which appeal to a different market than those who would buy knock-offs. Therefore, the copying that occurs in the fashion industry should be not treated in the same manner as copyright and design patent infringement. Trademark also offers fashion designers brand protection, which counteracts against direct copying by reducing consumer confusion. In addition to a name brand, other elements of a design can be trademarked, such as the distinctive shape of the Hermes Birkin bag or Burberry’s check pattern. Therefore, the most unique and truly innovative elements of fashion design are already adequately protected under the current regime, and further protection, especially under patent law, will only confuse and frustrate an industry which is fueled and largely dependent on various degrees of copying.
References
[1] 92 Va. Law Review 1687. December 2006. Kal Raustiala and Christopher Sprigman. “The Piracy Pradox: Innovation and Intellectual Property in Fashion Design.”
[2] “Statement of the United States Copyright Office Before the Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary.” 109th Congress, 2nd Session. July 27, 2006
[3] 35 USC 171 – Patents for Designs
[4] 35 USC 173 – Term of Design Patent
[5] “A Guide to Filling a Design Patent Application.” http://www.uspto.gov/web/offices/pac/design/toc.html
[6] In re Nalbandian, 661 F.2d 1214 (Court of Customs and Patent Appeals)
[7] www.fashionwiredaily.com/first_word/news/article.weml?id=352
[8] 92 Va. Law Review 1687
Posted by at April 8, 2007 9:15 PM
in Commentary Posts
