Anne Kearns is the founder of Anne Kearns Law. Anne specializes in intellectual property and helping startups protect and build their brands. But in addition to being a legal expert, Anne is also an entrepreneur with her own fashion line. She has sourced fabrics, worked with manufacturers, and been in the trenches of e-commerce making her the perfect advisor for designers like you. We knew Anne was the perfect voice to help you understand the ins and outs of protecting your designs. She was kind enough to give us a crash course in Copyright and Trademark Law and how it relates to the fashion industry.
When it comes to protecting your designs, it is always best to have the law on your side. In the first part of this series, we are going to look at the foundations of copyright and trademark law.
One of the biggest concerns for new and established designers is making sure their designs are protected. You never want to turn around see a copy of your design being sold by another brand. Protecting your designs is important to your brand and collection, but how do you do it? And what can you actually protect?
Protecting your Designs: Trademark and Copyright Law
There will always be a certain amount of copying in the fashion industry. It may be in the form of inspiration or just a blatant knock-off, but protecting your designs will limit other people’s ability to take your intellectual property.
So what can and can’t be copied? Could you, for example, copy and sell a team’s cheerleading uniforms? No. Not only are the logos protected, but other elements including chevrons and stripes may be, too. What about Carrie Bradshaw’s iconic pink tulle skirt? Actually, yes that’s fine. Could you sell a line of stilettos with a red sole? No. Those famous soles are protected.
Some of these may not make sense, but they will. First, we need to get to know the basics of copyright and trademark law.
Copyright protects things you can physically see and perceive. This would include books, music, and movies. It also protects things that are two or three dimensional such as graphics, pictures, or sculptures.
Requirements for Copyrighting
There are two basic requirements to be able to copyright your work. First, copyrighted work must be independently created and minimally creative. What does this mean? Essentially, you thought of it. It cannot be copied or available in the public domain. Minimally creative just means that there should be some degree of originality to it. The more creative the stronger the protection because it makes it easier to prove that it was all your idea.
The second requirement is that copyrighted work must be tangible. As soon as you take a picture and it is in your camera or you put your words on paper, you own it. You can’t copyright an idea until it becomes tangible.
As soon as your work is created, it is protected. However, if you ever need to follow suit it must be registered. It is true that you can write a cease and desist letter without registering, but you won’t get very far. Copyright registration is relatively cheap and well worth the investment.
Most of us recognize the copyright symbol, but do you have to use it? The short answer is no. But the symbol immediately alerts people to the fact that what they are looking at is legally protected.
What Cannot be Copyrighted
It is important to know where protection begins. You cannot copyright ideas. As we mentioned earlier, copyrighted works must be tangible. Single words, titles, or phrases cannot be copyrighted. Anything factual like a list of ingredients or historical facts is not copyrightable.
As far as fashion, it is important to know that useful articles cannot be copyrighted. It doesn’t matter how cute it is, a functional item cannot be copyrighted. Chairs, hammers, tables, these can’t be copyrighted.
Clothes also fall under the category of useful articles. They cover and worm you. There are aspects of clothing that can be protected but things like shape, style, cut, and dimensions can’t be copyrighted.
But, there is a loophole. The law allows for you to copyright a single part of the design as a single entity. Remember our examples earlier? Carrie’s skirt is tulle and a basic shape – it’s functional. However, if a design element can be seen as its own entity with its own individual purpose, it can be copyrighted. This loophole includes graphics (two-dimensional) and other specific elements such as straps, stripes or handles that are unique to the brand.
A trademark identifies the source of the goods and services and prevents others from using similar goods. A trademark can protect a brand name, tagline, logo design, or trade dress. For example, Nike is able to trademark its name, the phrase “Just Do it”, and the Nike swoosh.
Elements of Trademark
There are two elements of a trademark. The first is that it needs to be strong. It should be fanciful, arbitrary, or suggestive. For example, the word Kodak is an arbitrary term that is used to describe a special moment. It’s a strong trademark. On the other hand, if a computer company wants to trademark the name PC Laptops, they won’t be successful because the name describes exactly what the item is.
The second element is that they can’t be confusingly similar to other trademarks. When a trademark is submitted, the Trademark Office will compare it with anything similar and look at whether they’re similar in sound, appearance, meaning or impression and whether the goods are related. So if you are trying to trademark your brand name, but it sounds similar to another brand that serves the same purpose, you will not be able to get a trademark.
As with copyrights, you are not required to register a trademark for your brand. It is, however, a good idea to do so. It costs above $300 but will give you nationwide protection. Without a registered trademark, you are only protected in the geographical area that you are using it or it is known. If you are selling only in two states and a person in a third state wants to use the name, they will be able to do so unless you register.
Registering also means that people will be able to easily see whether or not a trademark is available. Trademarks are easily searchable online. It also keeps someone else from coming along and registering their own trademark for your brand’s name, tagline, or logo.
A Trade Dress is a little bit different than a trademark, but they are in the same family. It is the look and feel of a product, package, or design. To have a trade dress, you have to have a secondary meaning. That means that consumers out there have to look at your product package or design and say, “Oh I know who that belongs to.” Another requirement for a trade dress is that it can’t be functional.
A trade dress takes time to build. In other words, if this is your first fashion line you won’t immediately be able to prove that your product has a trade dress. It takes time to build that immediately recognizable second meaning.
For example, Adidas. Adidas has its own trademark, but the shoe itself is considered to have trademark rights under trade dress. Think about those three strips. When you see somebody wearing that shoe, you probably know it’s an Adidas shoe, and you know those three stripes aren’t functional because they aren’t meant to hold the shoe together. They’re just for looks.
Another example of trade dress is the lacquered red sole on Christian Louboutin shoes. When you see those red soles, you instantly know who designed the shoe. However, this trade dress is not enforced if the red sole is part of a monochromatic design, for example, the red shoe by Yves Saint Laurent. This particular case was taken to court where it was determined that this design was only recognizable when paired with a contrasting top color.
I hope this has served as a good introduction to copyrights, trademarks, and trade dress. In the next post, we’ll take a better look at copyrights and trademarks as they relate to the fashion industry.