Accounting for more than four 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 Senator Charles E. Schumer (D-NY) in September 2012, 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.
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.