Legal non-protection of clothing design and fashion is a longstanding tradition of United States in spite of the highly lucrative business of the apparel industry: “Yet, in a world where the creative works of musicians, artists, and filmmakers are so highly protected that even a child can be used for sharing music over the Internet, the United States does not see the need to protect the designs that a fashion designer creates.” Julie P. Tsai, Fashioning Protection: A Note On The Protection of Fashion Designs In the United States, 9 Lewis & Clark L. Rev. 447, 448 (2005). This has been problematic since so many other creative workers in other industries such as the music industry have the rights of intellectual property protection. Why is it so difficult for designers to protect their creative efforts in the United States?

It has been difficult for fashion designers to protect their designs since it is difficult to categorize their intellectual property. If they try to protect their work with patents, they run the risk of a costly, lengthy process that may or may not be accepted. It is also very difficult for designs to fulfill all of the requirements for a patent. Patents are required to be new, useful and non obvious. Most designers can admit that while their designs have a degree of unique creativity, they also borrow from other designs and most items of fashion are not new. It is also very hard to contend that the actual unique designs created by these designers are actually useful in the way most items that are protected by utility patents are. Another important factor to consider is that fashion collections created by designers work on such a rotational seasonal calendar. Fashion is constantly changing and entails more ambiguity than the clear cut world patents would provide.

Hence, the previous quote of Oscar Wilde in my introductory post. How do we categorize the work of fashion designers? Should this work even be protected since fashion is cyclical?

My focus of my posts this week will be Counterfeits. Are counterfeits really that bad? How do counterfeits affect commerce?