California Fashion Association:
The Price Tag For Being a Copy Cat - A Claim of Infringement
by Crystal A. Zarpas
We all remember the day when a blouse was a blouse and once it hit the runway, in most instances, it was fair game for copying. While copying certainly is the ultimate compliment, in today's fashion world, you better think twice before you do it.
Of particular concern today is a garment which embodies an original (graphic or other) design or an original fabric pattern. While the structure of the garment may not necessarily be protected from being copied, the original design or fabric pattern it embodies just may be considered "intellectual property", which is protected by law.
Intellectual property comes in several forms; a copyright, a trademark or a design patent; and all of these forms of protected intellectual property must be taken into consideration before you take the liberty of copying someone else's original design or fabric pattern. The terms "copyright", "trademark" and "patent" often are confused and used interchangeably but they are 3 different concepts which afford very different legal rights to the owner.
Copyright law protects artistic, literary, musical, dramatic and audiovisual works fixed in a tangible medium of expression and regulates the use of these materials by someone other than the owner. A trademark is any word or symbol used by a manufacturer to identify his products and distinguish them from those sold or manufactured by another. Patent law regulates the making, use or selling of a patented invention by someone other than the owner.
It is important to note that there are many overlaps in the law in this area and it may be appropriate for the owner, as additional lines of defense against infringers, to file for not only copyright protection but trademark and design patent protection as well. This would be decided on a case by case basis depending upon the nature of what the owner is seeking to protect. For example, if you intended to use an original design over and over again as a logo to identify the product as your own, then it may be appropriate to apply for trademark protection as well as copyright protection.
And if you are not the owner of the original design or fabric pattern, you had better think twice before using it without the owner’s permission. Worst case scenario - you use someone else's protected original design or fabric pattern, you receive a cease and desist from the owner, a law suit is filed against you for infringement, your unlawful conduct may be enjoined by a United States federal court, the infringing goods may be seized and forfeited and you and your buyers will be liable for damages, disgorgement of profits, costs and the owner's attorney's fees.
The price tag for being a Copy Cat can be pretty staggering, indeed. !!!