Why Fashion Design is Like a Boat

Fashion Week in New York City provides much fodder for the New York Post and its tabloid rival, the New York Times. In addition to Tom Ford's always bare chest and Jenna Jameson fully clothed, there are the latest collections to oogle over, and of course copy. And it is the copying that caught the attention of four members of the House IP subcommittee (2 Southern Republicans, a Southern Democrat, and a Democrat from Southern Massachusetts), who on March 30th introduced H.R. 5055, which equates haute couture with vessel boat hull design, at least to the extent of proposing to protect the former in chapter of title 17, now reserved for the latter.

The Design Piracy Prohibition Act would create a limited three year sui generis right for fashion designs, defined to include not only outergarments, but also underwear, gloves, footwear, headgear, handbags, purses, tote bags, belts, and eyeglasses.

The fashion industry has been seeking protection since the 1920s. Under the 1976 Act, there have been a few interesting cases, like Galiano v. Harrah's Operating Co., 416 F.3d 411 (5th Cir. 2005)(uniforms), Express, LLC v. Fetish Group, Inc., 2006 WL 802294 (C.D. Cal. March 24, 2006), and the bridal dress cases, Eve of Milady v. Moonlight Design, Inc., 48 USPQ2d 1809 (SDNY 1998), 1998 U.S. Dist. LEXIS 21303 (SDNY Aug. 24, 1998), and Eve of Milady v. Impression Bridal, Inc., 986 F. Supp. 158 (SDNY 1997). In the Eve of Milady cases, protection was extended to the ornamental aspects, and not, at least as I understand them, the three-dimensional shape. That shape (among other things), is what H.R. 5055 is aimed at.

It is very late in this Congress for a new initiative to get legs, as one might say. There is an excellent article by Professors Kal Raustiala and Chris Sprigman, "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design" here from a January 2006 UCLA research paper one can read to bone up on the issues.