The role of IP rights in the fashion business: a US perspective

• Author: John Zarocostas
• Position: Freelance journalist

Julie Zerbo, founder and Editor-In-Chief of The Fashion Law (www.thefashionlaw.com) in New York, a leading publication for fashion law news and analysis, discusses the growing importance of IP rights for the fashion industry, the significance of recent landmark rulings relating to copyright and trademarks and some of the challenges and opportunities ahead for fashion law in the digital age.

How are IP issues affecting the fashion industry?

IP law has played an enormous role in the proliferation of fashion. Take runways, for example; very few designs on display are sold in stores. The runway is an opportunity for designers to display their creative talent, attract media attention and build awareness of their brand. They also provide an opportunity for a brand to sell more affordable items, such as perfumes, cosmetics or T-shirts, with brand names prominently displayed on them. So much of the fashion industry thrives on this type of IP licensing. IP is a core asset of the fashion business. In the United States, we talk a lot about copyright law as the main source of protection for designs and its interaction with fashion. But trademarks are really the most widely used means by which fashion brands protect themselves in the United States.

The recent landmark case – Star Athletica, LLC v Varsity Brands, Inc. – is likely to have an impact on the fashion industry in the United States. The case, which went to the US Supreme Court, centers on the copyrightability of designs on the surface of cheerleader uniforms and the concept of “separability,” which is a pre-requisite for a garment or other useful article to be protected under US copyright law. As copyright law does not seek to protect or create a monopoly over useful articles, and as garments, dresses, shoes, bags and so forth are considered useful items, they don’t qualify for copyright protection as a whole. Only design features that can be separated from a garment or other utilitarian or useful item, so to speak, qualify for copyright protection in the United States. The whole issue has been a major source of frustration for designers in the United States for some time because it means that only certain aspects of their garments, and not the garment as a whole, are protectable.

With that as a baseline, fashion businesses in the United States are using IP in interesting and creative ways. For example, we now see growing reliance on design patent protection, even though it is more expensive and time-consuming to obtain than copyright protection. More businesses are also relying on trademark protection to protect their brands and trade dress (i.e. the appearance and packaging of their products).

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