Copyright, Trademark, and Patents - Oh My!

Louboutin red soled shoe from Trademark RegistrationIntellectual property protection is always complicated, but this is particularly true in the fashion world. Since U.S. copyright law does not protect fashion design as a rule, results arise that may at first seem surprising and fashion designers must turn to other legal theories to protect their creations. Our own Professor Jeannie Suk and her co-author C. Scott Hemphill explored some of the legal issues around fashion, intellectual property and innovation in their 2009 Stanford Law Review article “The Law, Culture and Economics of Fashion.

Some designers turn to trademark law, attempting to use this theory to protect design elements that are distinctive to their brand. Recently, Christian Louboutin used this theory against Yves Saint Laurent, based on the well-known (and trademarked!) red sole of Louboutin shoes. 

Learn more:

Jeannie Suk "Little Red (Litigious) Shoes", New York Times, January 21, 2012

Complaint and DocketChristian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc., No. 2011cv02381,  (S.D.N.Y.)

Another approach to protecting fashion-related products can be to patent the underlying technology.

Patent from M. Jackson for shoes to create an anti gravity illusionDetail of michael jackson patent showing man leaning

One famous example of this for fashion accessories is the 1993 patent granted to Michael Jackson and two other inventors who created the shoes that allowed Jackson to dance at a 45 degree angle while performing his song Smooth Criminal on tour.

1867 Singer sewing machine patentThough patents are rarely used to protect actual items of clothing, they are common for technology used to produce fashion.

In particular, a virtually endless number of variations on the sewing machine have been patented in the U.S. over the years, including this example from 1867.

Unfortunately, fashion designs themselves are rarely afforded any protection. Though this frequently results in designers copying one another, it can also result in fashion houses copying other artisans.

Comparison of Shaman's parka with modern fashion parka A recent example of this saw clothing design firm Kokon To Zai (KTZ) creating a sweater that copied the design of a parka originally created by an Inuit shaman named Ava.  The parka was of an unusual and spiritually symbolic design. 

Ava's family protested, particularly given the spiritual symbolism and cultural significance of the design. KTZ eventually apologized and stopped selling the sweater, but, it is worth noting that there was almost certainly no legal theory protecting the design from copying.

Learn More:

CBC Radio Interview with Salome Awa, Ava's great-grandaughter

Northern Voices: Inuit Writing in English, Ed., Penny Petrone,  University of Toronto Press, Toronto (1988), HOLLIS 990015400200203941

Sinews of Survival: The Living Legacy of Inuit ClothingBetty Kobayashi Issenman, UBC Press, Vancouver (1997),  HOLLIS 990076884790203941