Protecting Fashion Product Designs Under the Lanham Act

– New York Law Journal

Unlike in other countries, especially in Europe, the legal protections afforded to the design and appearance of fashion clothing and accessories in the United States are relatively limited. Under U.S. copyright law, "useful articles," such as clothing, handbags and footwear, are expressly exempted from protection. (Original creative elements of clothing and accessories such as hardware, ornaments and other artistic components that are physically separable from the product can be copyrighted, but the entire appearance of a useful article cannot be protected by copyright under U.S. law.)

The physical appearance of fashion attire and accessories can be protected by design patent, but the scope of such protection is exceedingly narrow. Often, subtle differences between the patented design and the accused article are sufficient to defeat a claim of patent infringement. Also, given the rapid pace of changing fashion trends, the amount of time that it takes to obtain a design patent makes it an impracticable means of protection for most fashion items.



pursuant to New York DR 2-101(f)

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