On July 13, 2011, the so-called Fashion Bill was reintroduced
into Congress, carrying the same name as its previous iterations,
the "Innovative Design Protection and Piracy Prevention
Act," H.R. 2511 ("IDPPPA"). This is Congress's
most recent version of the Fashion Bill, which would amend the
Copyright Act to extend special protection, but not full-fledged
copyright protection, to fashion designs.
Only about ten pages long, the IDPPPA provides for a three-year
term of protection for original elements or arrangements of fashion
designs that are the result of a designer's "own creative
endeavor" and that "provide a unique, distinguishable,
non-trivial and non-utilitarian variation over prior designs".
To combat the potential for frivolous lawsuits, the IDPPPA requires
a heightened pleading standard, namely that a plaintiff plead the
facts supporting fashion design infringement with
particularity.
Additionally, the IDPPPA includes three primary defenses for
fashion design infringement. Under the Bill, the accused design
does not infringe if it: (1) is not "substantially identical
in overall visual appearance to" the original elements of a
protected design; (2) results from "independent creation"
by a different designer; or (3) falls under the "Home Sewing
Exception," which means that it was produced as a single copy
"for personal use or for the use of an immediate family
member, if that copy is not offered for sale or use in trade"
during the three-year period of protection.
The IDPPPA has been lauded by numerous icons in the fashion
industry, particularly because under the current state of the law
only limited protection is available for well-recognized designs
through trade dress, design patent, or trademark law. If passed,
this Act would mark the first recognized statutory protection for
fashion designs in the United States. However, the IDPPPA also
carries significant opposition; the primary argument against the
Bill being that it would open the door for frivolous
lawsuits.
On July 15, 2011, after the bill was referred to the House
Committee on the Judiciary, the Subcommittee on Intellectual
Property, Competition, and the Internet held a hearing concerning
the IDPPPA. Rumors suggest that the IDPPPA will be a major priority
in the Intellectual Property realm for the Judiciary Committee when
Congress reconvenes.
Venable continues to track this important legislation.
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