Introduction
The legal context of fashion and design is of great importance to many professionals working in this field. As a rule, much attention is paid to the protection of intellectual property. Copyright violations can become the cause of significant conflicts between various companies because, in this way, they try to retain their competitive position in the market. This paper is aimed at examining the concept of trade dress. Moreover, it is important to discuss trade dress protection in the United States. In this way, one can illustrate the influence of legal issues on fashion and design. Overall, it is possible to argue that trade dress can be effectively protected if fashion designers can demonstrate the distinctiveness and non-functionality of their work. These criteria are important for determining whether copyright was violated or not. Furthermore, the legislation, which exists in the United States, is sufficient for safeguarding the rights of designers or manufacturers. However, there are some limitations; for example, American legislators do not explicitly identify the term trade dress. These are the main arguments that can be put forward.
The notion of trade dress
Very often, this term trade dress is used to describe various visual characteristics of a product; in particular, one should speak about such elements as shape, the combination of colors, texture, or ornaments (Holbrook & Harris 2008, p. 223). In many cases, this concept can be defined as the “overall image” of a certain product (Holbrook & Harris 2008, p. 223). However, it is important to remember that the elements of trade dress are not fully identified in various legal definitions (Jimenez & Kolsun 2010). The problem is that designers may identify various components that can be linked to the visual appearance of a product or a brand. For instance, fashion designers can choose a specific pocket placement that is featured in every product of the collection (Springsteel 2013, p. 236). Provided that this element of design is copied by other producers, the manufacturer can file a lawsuit against them and eventually prevail in the court (Springsteel 2013, p. 236). This is why current definitions of trade dress are usually very broad. To a great extent, this approach is quite justified because legislators cannot always predict a potential cause of copyright disputes. This is one of the issues that should be taken into account.
Trade dress protection in the United States
This concept of trade dress plays an important role in the copyright laws of the United States. In this case, one should speak about the Lanham Act that was adopted in 1946. This law contains several important provisions. In particular, according to its provisions, manufacturers can be accused of copyright violations if they use “word, term, name, symbol, or device, or any combination thereof” that can cause the confusion of potential buyers and influence their purchasing decisions (Mann & Roberts 2012, p. 798). This list contains only an implicit reference to the concept of trade dress. As it has been said before, this term includes a great number of components, and its meaning cannot be reduced only to the use of names, words or symbols. In the past, American legislators argued the notion of trade dress could be synonymous with packaging (Mann & Roberts 2012, p. 798). However, nowadays courts accept a broader meaning of this notion which encompasses various elements of design. This change is important for protecting the rights of manufacturers. Moreover, the broader interpretation of this concept is of great benefit to fashion designers whose creative decisions can be copied by their competitors.
It is critical to remember that the elements of trade dress can be protected if they do not serve certain functional purposes (Bouchoux 2012, p. 504). For example, ornaments, logos or names of companies are not functional since they do not serve any utilitarian purposes (Bouchoux 2012, p. 504). Under such circumstances, it is not difficult for designers to prove that the copyright laws were violated. However, there are more difficult situations. In particular, the design of pockets or the choice of specific materials can be functional. Therefore, it is quite possible that other designers can adopt a similar approach because, in this way, they can better meet the needs of clients. This is one of the distinctions that should not be disregarded. The owners of copyright should keep in mind that they will bear the burden of proof in various legal disputes. In other words, they should demonstrate that their creative work was emulated. For example, they should show that a certain non-functional element was copied by competitors. More importantly, they need to prove that this emulation can lead to consumers’ confusion and affect their purchasing decisions. This is one of the details that should be considered before filing a lawsuit against a potential competitor.
Furthermore, according to the Lanham Act, the owners of trade dress must demonstrate its distinctiveness (Barrett 2008). In other words, the owners of copyright should first prove that the arrangement of trade dress elements is not commonplace for a specific type of product (Barrett 2008, p. 239). For example, one can mention the famous swoosh or the logotype which is included in various Nike products. This logo has several characteristics of distinctiveness. For example, it is memorable and separable from a particular product. Furthermore, it can indicate that this footwear has been produced by the same manufacturer. Yet, there are difficult cases. For instance, one can say that an arrangement of colors or ornaments can be a distinctive element of trade dress since it can be associated with a specific fashion designer or a brand. Under such circumstances, the plaintiffs can easily demonstrate that their rights were violated (Bouchoux 2012, p. 504). This is one of the details that should be taken into account.
However, in many cases, plaintiffs should illustrate that with time passing a certain element of trade dress has already acquired a certain secondary meaning (Bouchoux 2012, p. 504). This strategy must be chosen if trade dress elements are not inherently distinct. In this case, they should show that in the public mind, there is a connection between the trade dress and the manufacturer. This argument is particularly relevant if one speaks about the products of fashion designers whose creative works are often copied by manufacturers without any authorization. Moreover, in some cases, the work of designers can bear some resemblance to one another because these designers have been inspired by the same artistic source. This is one of the challenges that make it difficult for judges to settle such disputes. Under such circumstances, they need to provide evidence that can show that the secondary meaning exists. In particular, one can examine commercial materials indicating that a specific element of trade dress is consistently used. This is one of the strategies that can often be adopted by designers to defend their rights in court. Secondly, manufacturers may say that customers can purchase a certain type of clothing provided that they see a particular element of design. To some degree, this claim can be supported with the help of empirical surveys. Overall, these strategies can be sufficient for protecting the interests of designers in court. Nevertheless, one should not forget that such lawsuits are usually expensive and time-consuming. Therefore, a manufacturer of clothes should make sure that there are specific examples illustrating the violation of copyright. This is one of the points that can be made.
Discussion
One can argue that in the United States, there is a sufficient legal safeguard that can protect the rights of designers. It may be difficult for businesses to emulate the products of their competitors because this action can lead to significant losses that these companies will have to incur. Furthermore, there are procedures that enable legal professionals to determine whether copyright was violated or not. Admittedly, various situations can give rise to debate, especially at the time, when designers need to demonstrate that a trade dress has a secondary meaning. Additionally, one should mention that the notion of trade dress is not explicitly identified in contemporary American legislation. Nevertheless, despite this limitation, one can say that intellectual rights are adequately protected in various provisions of the Lanham Act. American courts recognize the importance of trade dress. Furthermore, there are rules which enable the evaluation of its distinctiveness and functionality.
Conclusion
Overall, this discussion indicates that the notion of trade dress is critical for fashion designers. These professionals should have an opportunity to protect their intellectual property, and this task is critical for their economic sustainability. By accepting the broader meaning of trade dress, legislators can safeguard designers from potential violations of copyright. The laws adopted in the United States are sufficient for protecting the interests of various manufacturers. If they demonstrate the distinctiveness or non-functionality of design elements, they will be able to uphold their rights in court. These are the aspects that can be identified.
References
Barrett, M 2008, Intellectual Property, Aspen Publishers Online, Aspen.
Bouchoux, D 2012, Intellectual Property: The Law of Trademarks, Copyrights, Patents, and Trade Secrets, Cengage Learning, New York.
Holbrook, T, & Harris, A 2008, Model Jury Instructions: Copyright, Trademark, and Trade Dress Litigation, American Bar Association, New York.
Jimenez, G & Kolsun, B 2010, Fashion Law: A Guide for Designers, Fashion Executives and Attorneys, Fairchild Books, London.
Mann, R & Roberts, B 2012, Essentials of Business Law and the Legal Environment, Cengage Learning, New York.
Springsteel, L. (2013). Becoming a Fashion Designer, John Wiley & Sons, New York.