It's clear from our Adventures in Copyright series (especially the Marc by Marc near exact replica we posted yesterday) that designers have little protection when it comes to their designs. For American designers to protect their patterns, they must attain "trade dress" protection, which means consumers recognize a knockoff as coming from a particular designer like say, a wrap dress from DVF. This is pretty hard to prove and designers rarely win these cases.
It's a frustrating position for American designers to have little recourse when their designs are copied down to the most subtle details but a new bill gives designers some hope. Late last night, the New York Times broke the news that New York Senator Charles E. Schumer introduced a bill called the Innovative Design Protection and Piracy Prevention Act which would provide "very limited intellectual property protection to the most original design." So if Marc Jacobs wanted to sue whomever knocked off his bag, he'd have to prove that that his design is a "unique, distinguishable, non-trivial and non-utilitarian variation over prior designs," and that the knock off is "substantially identical" to the original. According to the Times, the bill has the support of both sides of the industry: the CFDA representing the designers, and American Apparel & Footwear Association (AAFA) representing the manufacturers.
"This type of statute may help the most innovative designers protect against knockoffs," says attorney Anne Sterba, who represented Valentino in the settlement of a 16-year trademark case.
But designers shouldn't start dancing in the streets just yet, Sterba cautions. "We need to see how the bill looks in its final version and how the courts interpret it before we celebrate too much," says Sterba. "This is a great first step for designers though. If this bill passes, the US will join a number of other countries that protect these types of items."
Our fingers are crossed.