Myers Berstein
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She Stole My Look!

Fashion is big business and, with good reason, clothing designers and companies are always looking for ways to protect their designs and collections. So how can a designer or company prevent others from stealing their designs?

One way to protect your fashion brand is by utilizing copyright protection. A copyright is automatically fixed upon completion of a work. But by filing for a copyright registration with the US Copyright Office, a fashion designer can gain additional protections and abilities. It is important to note that a copyright won't protect the item itself, but it will protect elements of the item/line such as any original prints or patterns, unique or new arrangements of color, or unique design elements.

Further, there is a provision in the Copyright Act that allows protection for some elements of a fashion design if "such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." A registration can also be obtained for the entire line either by submitting a registration application for the website or a lookbook (as long as it contains all the items in the line).

You can also take advantage of trademark and trade dress protection to guard your fashion brand against copycats. Trade dress is a subset of trademark protection and covers aspects such as packaging, design or color. Trademark/dress protection protects not just the mark or brand name (word, logo or phrase), but anything used a source identifier for the goods (for example, Tiffany's has trade dress protection for their iconic Tiffany Blue color).

Trademark protection is especially important for brands where the mark or logo features prominently on the apparel item. While you do receive trademark rights in a mark just by using it, as with a copyright, there are additional rights when you register the mark at the state or federal level.

A third and less used option to protect your fashion line is a design patent. A design patent a valid for 14 years and protects the ornamental look or design of functional items that are nonobvious and novel. While not generally not granted on apparel, they can be viable alternatives for accessories such as belts, handbags, shoes, eyeglass frames, elements of outerwear, and headgear.

These different areas of intellectual property can work together to provide layered protection for a brand, and a brand or designer should look at all the available options for protection and decide, with help from their attorney, which are best suited for their needs.

To discuss protecting your fashion line, contact the experienced Orange County IP lawyer at MYBE Law today.

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