Protection for Fashion Design: How We Got There
Since early August, the U.S. apparel and footwear industry has been buzzing about legislation recently introduced by Sen. Charles Schumer (D–N.Y.)—with the support of the American Apparel & Footwear Association (AAFA)—that would extend certain protections to unique fashion designs. As the dialogue continues, I want to take a moment and describe this new bill and the steps we took to get there. I am confident that a thorough analysis of this legislation will help separate the facts from the fiction.
Known as the Innovative Design Protection and Piracy Prohibition Act (IDPPPA), the legislation, introduced by Sen. Schumer in August, represents a commonsense compromise among many industry stakeholders to allow the narrowest protection for fashion designs the world has yet to see in the most practical way possible.
Many in the industry are familiar with earlier versions of this bill, which were completely unworkable and provided little or no protection for new and original fashion designs—just opportunities for endless litigation. In fact, the version that was introduced in the U.S. House of Representatives in 2009 would have opened the floodgates to possible litigation because of unclear and confusing infringement and originality standards.
Thankfully, the IDPPPA is nothing like its predecessors because it is a practical approach that offers high-level protections for never-before-seen fashion designs while affording the industry the ability to remain competitive in the global marketplace.
Under this legislation, a new design may enjoy a short three-year term of protection so long as it is truly original. In other words, if we have seen a design before somewhere in the closet of fashion history, it cannot be protected. Furthermore, only deliberate copies that are “substantially identical” to protected designs will be prohibited. To be substantially identical, an article of apparel must be so similar in appearance that it will likely be mistaken for the protected design and only contain trivial differences in construction.
The IDPPPA also dramatically curtails the opportunities for the industry to become mired in frivolous lawsuits. Unlike previous attempts at design-piracy legislation, this bill establishes a clear system to both initiate and defend against an infringement claim.
To discourage legal intimidation and unnecessary lawsuits, the legislation creates a heightened three-step pleading process in which the burden of proof lies completely with the plaintiff. A plaintiff must demonstrate that the design in question is protectable, the offending design is substantially identical and the infringer had access to the protected design. In other words, this improved pleading requirement stops mischief before it even hits the courtroom.
Likewise, the IDPPPA validates defenses to fight against a claim of infringement. A designer may show that the design was created independently of the protected design or that the design is not eligible for protection because it has already been created.
This bill removes the threat of an unwarranted seizure by U.S. Customs and Border Protection if a competitor thinks a design is too close to one it has created. The bill also eliminates the need to register designs into a national registry.
At its core, this legislation does not hinder the ways in which our fast-paced and highly inspired industry does business. Unfortunately, some industry critics are not able to see the benefits the IDPPPA brings and what potential harms it prevents.
All along, AAFA has agreed there was a very specific issue to resolve, but the solution demanded a narrow fix in order to prevent other obstacles to our industry’s business model. Because of that, AAFA fought hard against previous versions and continues to oppose them.
Sen. Schumer, with the AAFA and the Council for Fashion Designers of America (CFDA), worked to tailor a narrowly crafted piece of legislation aimed at protecting original fashion design. For added input, both groups assembled board-appointed representatives from within the industry, including designers and CEOs. AAFA also kept its membership informed of every development along the way.
Because this bill is a fresh start from past versions, I ask you to undertake a thorough examination of the language and find that this bill was written with the entire industry in mind. You will find that it levels the playing field for high-end designers, up-and-coming designers, brands and private labels. The investment made by stakeholders to craft a solution to such a narrow but pernicious issue within the industry is at least worth a fair shake.
As this bill moves through the legislative process, AAFA will be there to fully educate our lawmakers on the steps we took to reach agreement and why this agreement works for the industry. Kevin M. Burke is the president and chief executive officer of the American Apparel & Footwear Association, an industry trade group based in Washington D.C.
