A Case in Support of the Innovative Design Protection Act
Accounting for more than 4 million U.S. workers and $350 billion in annual retail sales, the U.S. fashion industry represents one of the nation’s largest drivers of economic growth. It also represents a core outlet for artistic expression. To that end, the U.S. fashion industry has been actively engaged in a decade-long public-policy dialogue about intellectual property and fashion design.
At its core, this dialogue is about establishing an intellectual-property right for the three-dimensional design of an article of clothing or footwear. This discussion has wrapped the industry in a very serious question:How do we protect truly original and innovative fashion design without stifling creativity, spurring frivolous lawsuits and hindering the industry’s ability to do business? The Innovative Design Protection Act (IDPA, S. 3523), legislation introduced by Sen. Charles E. Schumer (D–N.Y.) in September, represents a practical and workable approach to the real but narrow issue of design piracy. This legislation extends intellectual-property protections to never-before-seen fashion designs while preserving the industry’s ability to explore trends and conduct business without undue interference. Most importantly, this legislation significantly clamps down on frivolous lawsuits by clearly defining the infringement standard, allowing trends to flourish at top speed.
When talking publicly about the issue of design piracy, we have heard some confusion over the scope of protection of the bill. For example, this legislation would not allow for the protection of a sleeve or pair of cargo shorts.Sleeves are a component of an article, and the legislation only protects the article as a whole. Cargo shorts are in the public domain and therefore open to anyone to use. The IDPA also does not allow any utilitarian components to be protected. The bill simply extends protection to the artistic elements of an item as it is expressed as a whole. Not to be confused with previous, broader versions of design-piracy legislation, the IDPA encapsulates the compromise reached between the American Apparel & Footwear Association (AAFA) and the Council of Fashion Designers of America (CFDA). This compromise was reached more than two years ago with some improvements designed to strengthen the underlying legislation. First, this legislation offers any new design a short three-year protection term so long as it is truly original. In other words, if the design has been seen before, it cannot be protected under the IDPA. Further, only deliberate copies that are “substantially identical” to protected designs are prohibited under the legislation. To be substantially identical, a garment must be so similar in appearance that it is likely to be mistaken for the protected design.
Second, the IDPA eliminates opportunities for frivolous lawsuits that can bog down the creative process because it clearly outlines the system with which to bring a claim and defend against a claim by creating a heightened three-step pleading process. In this pleading process, the burden of proof is placed on the plaintiff to demonstrate that a design is, in fact, protectable, that the offending design is substantially identical, and that the defendant had access to the protected design.In all, this heightened pleading requirement stops mischief from even entering a courtroom.
Third, the IDPA offers two viable defenses that can be used to fight against a claim of infringement. The defenses include independent creation, or establishing that the protected design is not original. For example, if designer “A” claims infringement on a design by designer “B,” designer B can demonstrate that either the design is not original, as designer A claims, or that the two designers created a similar design while working independently from each other. Finally, new to the IDPA and supported by AAFA and CFDA is the requirement for a mandatory written notice from the copyright holder to the alleged infringer, subsequent to which the alleged infringer is given 21 days to cure the problem before a suit can be filed. During that period, no legal action can be started, but damages start to be computed. For instance, if designer A believes designer B has infringed on a protected design for two years but designer A did not provide notice until last month, damages can only begin to be collected from the date notice was given.
Written with the input of industry stakeholders representing the full scope of the entire global supply chain of the U.S. apparel and footwear industry—from design to manufacturing and compliance testing to retail—the IDPA offers high-level protections for truly original works without hindering the free flow of business currently enjoyed by a fast-paced and highly inspired industry. Thankfully, the elected officials, including Sen. Schumer and Sen. Dianne Feinstein (D–Calif.), who represent the significant fashion hubs on both coasts were willing to engage with us and learn about the significant economic footprint of the U.S. fashion industry and how we operate. Their diligence has created sound legislation that enables creativity, reduces frivolous lawsuits and rewards true innovation. We look forward to seeing this legislation passed by Congress as soon as possible. λ
Kevin M. Burke is the President and CEO of the American Apparel & Footwear Association.
Steven Kolb is CEO of the Council of Fashion Designers of America.
