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Counterfeit Fashion: The Interplay between Copyright and Trademark Law in Original Fashion Designs and Designer Knockoffs

33 Pages Posted: 23 Sep 2010  

Kevin V. Tu

University of Maryland Francis King Carey School of Law

Date Written: 2010

Abstract

The fashion and apparel industry is big business in both the United States and abroad. With the growth of the fashion industry and the role of the media in disseminating fashion commentary, public awareness about prominent fashion designers and the creations of such designers is at an all-time high. The popularity and status attached to certain designers and their trademark designs, therefore, has led to the rise of “style piracy.” A style pirate will copy a designer’s original creative work to capitalize on the popularity or desirability of the product. The copying can occur in varying degrees, including attempts to pass off counterfeit copies as the original, or the creation of “designer-inspired” products that seek to profit by giving the impression of relatedness to the original. Despite the potential loss of substantial revenue and exclusive control over the use of original designs facing designers, few legal rightsexist to protect these valuable creative and economic interests from misuse by style-pirates. Specifically, United States laws extend spotty legal protections, at best, against counterfeit and knockoff designs. The Copyright Act fails to provide adequate protection because its protection is generally limited to non-utilitarian designs. Thus, the inherent usefulness of apparel traditionally exists as a barrier to protection through copyright law. Given the shortcomings of copyright law, many designers have turned to trademark law and secondary meaning in trademarks as a means of circumventing the requirements of copyright law in order to defend against style-pirates and achieve some modest level of design protection. Although trademark law has been extended to utilitarian items in some cases, only a small portion of designs will ever reach the level of recognition and notoriety required for this type of protection. The interplay of both copyright and trademark law in this area highlights (1) the fact that neither copyright law nor trademark law affords sufficient protection for the original designs of fashion designers, and (2) the need for a more comprehensive plan for protecting creative but utilitarian works such as fashion designs. Based on the shortcomings of the copyright and trademark laws to provide adequate rights and remedies for fashion designers, this article argues that the copyright eligibility requirements should be extended to encompass the original and creative elements of fashion designs, such that the framework of copyright law, and not trademark law, becomes the primary method of design protection.

Keywords: copyright, trademark, trade dress, apparel, fashion, designs, counterfeit

Suggested Citation

Tu, Kevin V., Counterfeit Fashion: The Interplay between Copyright and Trademark Law in Original Fashion Designs and Designer Knockoffs (2010). Texas Intellectual Property Law Journal, Vol. 18, No. 3, pp. 419-50, 2010. Available at SSRN: https://ssrn.com/abstract=1681053

Kevin V. Tu (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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