U.S. intellectual property law protects fashion only in pieces. A garment’s overall cut or silhouette generally cannot be copyrighted because clothing is a “useful article,” but original prints and separable artistic features can be; logos and distinctive brand elements can be protected as trademarks or trade dress; new ornamental designs can be protected by design patents; and functional innovations and confidential know-how can be protected by utility patents and trade secret law. Fashion businesses get the most protection by combining these tools deliberately.
Designers often discover these limits the hard way, when a near-copy of a new piece appears online within weeks. Some commentators argue that the industry’s relatively thin protection actually fuels creativity by speeding up trends, while many independent designers feel it leaves their work exposed. Either way, knowing what can and cannot be protected helps a fashion business decide where to invest.
Copyright: Prints, Artwork and the Useful Article Rule
Copyright protects original works of authorship, such as fabric prints, graphics, illustrations, lookbook photography, website content and jewelry designs. It does not protect a “useful article” as such, and clothing is useful because it covers and protects the body. That rule keeps anyone from owning the basic building blocks of garments, like a collar, sleeve or hemline.
A design feature of a useful article can still be protected if it is “separable.” In Star Athletica, L.L.C. v. Varsity Brands, Inc. (2017), the U.S. Supreme Court held that a feature qualifies if it can be perceived as a two- or three-dimensional work of art separate from the article, and would be protectable on its own if imagined in another medium. Under that test, stripes, chevrons or graphic arrangements applied to a garment may be protectable, while the garment’s shape, cut and dimensions generally are not.
Practical points for designers:
- Copyright arises automatically when a work is created, but registration with the U.S. Copyright Office is generally required before suing over a U.S. work, and timely registration makes statutory damages and attorney’s fees potentially available.
- Keep dated design files and sketches to show authorship and originality.
- When freelancers or agencies create prints or artwork, use a written agreement that assigns copyright to your company. Commissioned work is not automatically owned by the business that paid for it.
Trademarks and Trade Dress
Trademarks are the most widely used IP tool in fashion. A trademark is any word, logo, symbol, slogan or other designation that identifies the source of goods. Well-known examples include brand names, logos and repeating monogram patterns. Trademark law protects against confusingly similar uses and, for famous marks, against dilution.
Trademark rights do not stop others from making a similar garment. They stop others from using a confusingly similar mark or brand identifier. A competitor may copy an unbranded silhouette but cannot put your logo, or something likely to be confused with it, on its product. That is why many brands integrate logos and signature patterns into their designs.
Trade dress extends trademark protection to the overall look of a product or its packaging. For product design, the Supreme Court held in Wal-Mart Stores, Inc. v. Samara Brothers, Inc. (2000) that protection requires proof of “secondary meaning,” meaning consumers have come to associate the design with a single source. Functional features cannot be protected as trade dress. As a result, a new design rarely qualifies on day one; trade dress usually protects signature elements that have become recognizable over time.
Brand owners should clear names before launch, file federal applications early (an intent-to-use application can establish priority before sales begin) and monitor marketplaces for counterfeits. Our article Trademarks 101 covers the registration process.
Patents: Design and Utility
Design patents protect new, original and ornamental designs for an article of manufacture, such as a distinctive shoe, handbag clasp or eyewear shape. For applications filed since May 2015, a U.S. design patent lasts 15 years from grant. Examination takes time, and fashion cycles move quickly, so design patents tend to make the most sense for products expected to sell for multiple seasons. Public disclosure starts the clock on filing deadlines, so talk with counsel before showing a design publicly.
Utility patents protect new, useful and non-obvious inventions, such as performance fabrics, wrinkle-resistant treatments, closures or manufacturing methods. They are costly and slower to obtain, but can be valuable for technical apparel and materials companies.
Trade Secrets and Contracts
Much of a fashion company’s value lies in information it never publishes: upcoming collections, supplier and factory relationships, pricing, customer lists and technical specifications. Trade secret law protects this information if it derives value from being secret and the company takes reasonable steps to keep it secret. Those steps include confidentiality agreements with employees, contractors and manufacturers, limited access to design files, and clear exit procedures. See our post on limiting employee misuse of company secrets.
Contracts fill the remaining gaps. Manufacturing and sourcing agreements should address ownership of patterns and tooling, overruns, quality control and confidentiality. Collaboration and licensing deals should spell out who owns the resulting designs and how each brand’s marks may be used.
Other Issues for California Fashion Brands
- Models and influencers. California’s right of publicity statute (Civil Code Section 3344) restricts commercial use of a person’s name, voice, signature, photograph or likeness without consent, so use written releases.
- Online sales. E-commerce brands must also handle consumer protection, privacy and auto-renewal rules; see our article on legal aspects of e-commerce in California.
- Counterfeits and knockoffs. Registered marks can be recorded with U.S. Customs and Border Protection, and most major marketplaces offer brand protection programs that work better with registrations in hand.
The Takeaway
No single body of law protects a fashion design from copying. Instead, brands layer protection: copyright for prints and separable artwork, trademarks and trade dress for brand identity, design and utility patents for qualifying products, and trade secrets and contracts for everything behind the scenes. Deciding early which tools fit each product line can make enforcement far more practical later.
Frequently Asked Questions
Can you copyright a clothing design?
Generally not the garment’s overall shape or cut, because clothing is a useful article. Original prints, graphics and other artistic features that can be separated from the garment under the Supreme Court’s Star Athletica test may be protected by copyright.
How can a fashion designer protect a new design?
Options include copyright for original prints and separable artwork, a design patent for a new ornamental design, and trademark protection for logos and signature brand elements. Confidentiality agreements protect designs before launch.
Is a knockoff the same as a counterfeit?
No. A knockoff copies a style without using the original brand’s trademarks, and is often lawful. A counterfeit uses an identical or substantially indistinguishable trademark without permission, which violates trademark law.
What is trade dress in fashion?
Trade dress is the overall look of a product or packaging that identifies its source. For a product design, the owner must show consumers associate the design with one brand, and functional features cannot be protected.
How Sutter Law Can Help
Sutter Law advises fashion and consumer product companies on trademark clearance and registration, copyright ownership, licensing, manufacturing agreements and trade secret protection through our intellectual property practice. Contact us for a free consultation.
This article is general information, not legal advice. Reading it does not create an attorney-client relationship.
