The fashion industry has been in the news lately with respect to intellectual property issues. There was the recent landmark Second Circuit decision reversing the district court’s extreme curtailing of color trademarks in the fashion industry. Louboutin S.A. v. Yves Saint Laurent America Holding, Inc., 11-3303-cv (September 5, 2012). Specifically, the Second Circuit declined to find a per se rule excluding fashion from the standard rule that a single color can acquire secondary meaning and function as an indicator of source or origin. Check out Steve Baird’s comments on this landmark decision in “Louboutin and Lessons Learned.” Trademark protection is clearly important in the fashion industry, where brands are especially important.
Knockoff products (especially purses on the street in big cities) are often considered enemies of the creative people in the fashion industry. Last week, the Senate Judiciary Committee voted to approve a “couture law” called the Innovative Design Protection Act, S.3523 (“IDPA”). This proposed law would fill a gap in current law by providing three years of protection for designs of clothing, eyewear and handbags. It can be described as quasi-copyright protection, because it only protects for three years, rather than the 70 years or more granted through copyright law.
In an effort to strengthen its chances of becoming law, the IDPA includes provisions calling for a 21-day notice period before filing suit, limiting damages to those accrued after the lawsuit is filed, and only allowing suits against retailers and importers who know that they are selling knockoff fashions. These provisions were designed to prevent a landslide of lawsuits.
Some people think that the bill is facing an uphill battle to becoming law. There is clear support for the IDPA by designers and fashion industry lobbyists, such as the Council of Fashion Designers of America and the American Apparel and Footwear Association. However, not everyone is supportive of the IDPA, including chain stores and others selling knockoffs.
Will the IDPA be enacted into law, and knockoffs be dealt a blow? After the Louboutin decision, maybe the fashion industry is on a roll.