Fashion and IP Law at the OCIPLA February 2018 Luncheon

Part of the CIONCA Law team attended the OCIPLA’s February Luncheon, featuring guest speakers Attorneys Farah Bhatti and Victoria Burke. OCIPLA (Orange County Intellectual Property Law Association) is a prestigious IP law organization, with almost 400 IP law professionals as members. Our firm supports OCIPLA through sponsorship and Attorney Cionca’s involvement as a board member.

This month’s topic addressed IP Protections for Fashion and Apparel. The intersection of intellectual property and fashion is emergent, and with fashion’s frequently changing nature and increasing number of players, questions arise regarding how one can protect his or her intellectual property in the industry. As a panel, Attorneys Bhatti and Burke shared their thoughts and opinions on how to maximize IP protection in such a competitive market.

It was discussed that there are a few prominent areas within the realm of IP law, one of which is copyright protection. As defined by the US Copyright Office, “Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression...[and] covers both published and unpublished works.” Regarding to copyright, it is possible to copyright some features of clothing (e.g., fabric prints), but not necessarily the clothing designs themselves. One important question to be answered is: Is the design feature separable—physically or conceptually—from the clothing article?

A second ground covered by the speakers was the possibility of filing for patents in the fashion world. While design patents may be perceived as the only choice, utility patents are still possible to attain for your fashion if the product functions beyond simply being apparel. For example, an article of clothing that also warms the wearer with an incorporated heating element may be eligible for a utility patent.

One last area of IP law as it relates to fashion addressed by the speakers was trademarks and trade dresses. This appears to be the most turbulent branch of IP law in terms of the fashion industry since source identifiers (i.e., trademarks) play a significant role in market success. While a common first thought/instinct is to protect brand name, it is important to keep in mind that the value of non-traditional trademarks should not be underestimated. The distinctness of a stitching, for example, may be enough to strongly identify a source and make an impression on consumers. Furthermore, an ornamental feature, such as unique stitching of a product, may overtime develop into trade dress registrable as a trademark, although secondary meaning is required.

Regarding the enforcement of IP law rights, under copyright or trademark law for example, an accused design/product or trademark or brand do not have to be identical copies to be infringing, as long as there is a suggestion that there may be a relationship between the accused and the original/known brand.

While social media can be used as a tool for the start-up and freelance artist, it should be utilized with caution. As a product’s promotion gains more traction, it runs the risk of becoming a larger target for more social media aficionados and/or more prominent competitors to covet.