Setting a Trend for Design Rights: An Analysis of Whether the United States Should Follow the European Union's Model for Fashion Design Protection

AuthorKatie Mullane
PositionLLM, Trinity College Dublin
Pages276-314
© 2018 Katie Mullane and Dublin University Law Society
SETTING A TREND FOR DESIGN RIGHTS: AN
ANALYSIS OF WHETHER THE UNITED STATES
SHOULD FOLLOW THE EUROPEAN UNIONS MODEL
FOR FASHION DESIGN PROTECTION
KATIE MULLANE
Introduction
During the 20th century, the United States and Europe emerged as the fashion
centres of the world. While these fashion industries have proven quite
valuable, the US has surprisingly never provided intellectual property
protection to fashion designs themselves. On the other hand, the European
counterpart offers a comprehensive system of design rights. Within the US,
the idea of protection remains a contentious topic, often rejected on the basis
of fashion’s alleged dependence on copying.
1
As such, a patchwork of
Intellectual Property (IP) rights, intended for other forms of innovation, has
been manipulated by fashion designers to protect elements of their designs.
This article seeks to examine the divergence in the US and European
approaches and ultimately establish that exclusive rights should be provided
to fashion designers.
The constitutional basis for IP protection in the US, to promote the
progress of science and useful arts,
2
has been interpreted to support the rule
utilitarian justification for IP protection.
3
This argument suggests that
offering limited rights to authors and inventors through instruments such as
copyright and patent is necessary to incentivise the creation of valuable
intellectual works.
4
Social progress depends on the development of new
LLM, Trinity College Dublin. The author would like to thank her parents, Mary and Eamonn,
for their patience and support. The author would also like to extend her gratitude to Dr. Eoin
O’Dell and Celia Reynolds for their invaluable guidance.
1
Susan Scafidi, ‘Intellectual Property and Fashion Design’ in Peter K Yu (ed), Intellectual
Property and Information Wealth (Praeger Perspectives 2006) 118.
2
US Constitution art I, § 8.
3
Lauren Howard, ‘An Uningenious Paradox: Intellectual Property Protections for Fashion
Designs’(2009) 32 Columbia J Law & Arts 101, 117.
4
Adam Moore, ‘Personality-Based, Rule-Utilitarian, and Lockean Justifications
277 Fashion Design Protection [Vol 21]
technologies and continued artistic expression. The utilitarian justification
supposes that without legal protection, the risk of others replicating new
ideas reduces the incentive for authors and inventors to innovate.
5
The
theory advances the argument that rights should be granted to creators to
ensure an environment is cultivated in which innovation flourishes for the
advancement of society. Legal protections created under this justification aim
to balance the interests of innovators and society generally.
6
This article
examines whether the current US IP regime incentivises fashion innovation
sufficiently. This innovation-based rationale further underpins the
proposition that the EU system of design rights be adopted as a model for
fashion design protection.
Part I explores the phenomenon of copying within the fashion industry,
including an analysis as to why these defences are incorrect and outdated.
Part II presents justifications is favour of providing IP protection to fashion
designs in consideration of the damage to innovation caused by a lack of
sufficient protection. Part III outlines the patchwork of IP protection available
to designers in the US, and the gaps in their protection of design rights. Part
IV explores the system of design rights available in the EU, and suggests that
this regime is an example that should be followed by American legislators.
Part V challenges the notion that despite their legal differences, the US and
EU fashion industries do not vary in terms of innovation.
I. Copying in the Fashion Industry
In order understand the enormity of the threat of copying to innovation, the
structure of the fashion industry must be understood. The fashion industry
can be imagined as a pyramid, with haute couture at the summit, just above
luxury, high-end designers, followed by a middle tier comprised of less
established designers and high-quality fashion chains. At the bottom of this
hierarchy are the ‘fast fashion retailers’, who offer low prices and take their
of Intellectual Property’ in Kenneth Einar Himma and Herman Tavani (eds), The Handbook of
Information and Computer Ethics (Wiley 2008) 105, 105.
5
Moore (n 4) 111.
6
‘What is Intellectual Property?’ (WIPO, 2004)
accessed 22 June
2017.
278 Trinity College Law Review [Vol 21]
trend cues from those above them.
7
Every season, new trends permeate the
industry as designers produce their take on a single idea. Through fashion
trends, the new becomes old and then leads to the new, a good thing for
designers in both a commercial and a creative sense.
8
Sometimes, certain
styles show up in several collections simultaneously. This convergence of
designs that results in a trend is often considered a reflection of the
‘zeitgeist’.
9
The roots of a trend may in other instances be traceable to one
designer, taking hold when other designers rework the originator’s idea. The
constant rate of innovation within the fashion industry makes it difficult to
differentiate between the adoption of trends and copying; this section intends
to draw that distinction.
A. The Difference between ‘Close Copying’ and ‘Trend Adoption’
Although identifying and creating clothing based on popular trends might be
colloquially considered a form of copying, there is an important analytic
distinction between ‘trend adoption’ and ‘close copying’. The effect of a close
copy on the original designer is substantially different to the effect of an item
that is merely designed to be part of a greater trend. The basic distinction is
that trend adoption involves innovation but close copying does not. While
items designed to partake in a trend share common features, their differences
highlight the innovation they represent. Trends develop through the
downstream innovation of another designer’s idea, often taking inspiration
from the original designer and merely referencing the design. Conversely,
copying aims to produce close or identical imitations of previous designs. The
production of these pieces can reduce or distort a designer’s incentive to
innovate when they are purchased as a substitute or dilute the prestige of an
original design.
10
Properly tailored design protection should prohibit close
copying but enable trend development.
7
Day, ‘Double-Edged Scissor: Legal Protection for Fashion Designs’ (2007) 86 NC Law Rev
237 ,261 >http://scholarship.law.unc.edu/nclr/vol86/iss1/5/> accessed 6 December 2016.
8
C Scott Hemphill and Jeannie Suk, ‘The Law, Culture, and Economics of Fashion’ (2009) 61
Stanford Law Rev 1147, 1151.
9
Kal Raustiala and Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual
Property in Fashion Design’ (2006) 92 Virginia Law Rev 1687, 1728.
10
Hemphill and Suk (n 8) 1166.

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