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 person to tell you everything you need to know about protecting your line. She was kind enough to give us a crash course in Copyright and Trademark Law and how it relates to the fashion industry.
Protecting Your Line
In part one of our “Protecting your Designs” series we looked at the fundamentals of copyright and trademark law. Hopefully, you now have a good idea of how these protections work and the requirements for each. Now, let’s take a better look at copyrights and trademarks as they relate to the fashion industry.
When Should You Register?
Ideas are not protected. But as soon as you express those ideas in writing or design, you should register anything you believe qualifies for copyright protection. However, trademark and trade dress are a little different.
A trademark must be in use, but the trademark office will allow you to register with intent to use. So, if you aren’t using your brand name, slogan, or logo just yet, you can still put them on hold for when you are ready.
A trade dress is something that has a second meaning, it needs to be recognizable. Brand recognition takes time to build up. You can’t release your first purse and then register for trade dress the next time. Trade dress takes a little longer to justify than copyright or trademark.
It is important to know what can and cannot be copied from other designers. It also important to know what can be copied from your designs and what can be protected. Do you think there is an element to your design that qualifies for copyright, trademark, or trade dress? Register it.
Can You Protect Prints?
If you designed the print yourself, absolutely. What that means is, you can’t copyright the print on a piece of fabric you purchased from the local fabric store. In that case, the copyright belongs to the manufacturer. A requirement for copyright is that it must be independently made. While the dress you made with the fabric may have other copyrightable elements, the print can only be protected if you design it yourself.
Who Needs to Sign NDAs?
Non-disclosure agreements are a great way to protect what happens during the design and manufacturing process. However, it will be difficult to get a factory to sign one. Sometimes you can get pattern makers to sign NDAs and that is recommended. Pattern makers are the ones with all the information.
There are a lot of NDA templates out there that you can use. Before you begin, research what is required in your state and simply choose and print one that’s relevant to you. If your signed NDA is invalid in your state, it won’t do you much good.
What Parts of a Design can be Copyrighted?
Clothing falls under the category of useful articles and can’t be copyrighted. However, specific elements of your design may qualify for copyright protection. So, you can’t copyright the shape, cut, dimensions, or fit of your design. You could, however, copyright a specific graphic used on your design or a specific strap.
We want to give a big thanks to Anne Kearns for giving us a great crash course in Copyright and Trademark law. If you are looking for an attorney with 20 years of experience, Anne offers free 20-minute consultations and specializes in helping startups. You can reach her on her website at Anne Kearns Law.