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Designers Leaving Their Mark : Basics of Trademark Law in the U.S.


Just when you thought you understand the world of intellectual property and its application, you may come to find that you have a little bit more to learn when approaching intellectual property matters in the fashion industry. According to the World Intellectual Property Organization (hereinafter WIPO), intellectual property refers to “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” There are three main areas of intellectual property law. They include (1) trademark law; (2) patent law; and (3) copyright law. This article will explore the basics of trademark law as it relates to fashion in the United States.

Where does this protection come from?

Both state and federal law govern trademarks. Unlike copyright law, there is no such protection provision for a trademark under the Constitution, but Congress was given the virtue of authorization under the Commerce Clause.

In 1946, President Harry Truman signed into law the Lanham Act, which is also known as the Trademark Act of 1946. It is a federal statute that governs trademarks, service marks, and unfair competition. Since the implementation of this act, registration of trademarks at the state level has grown unpopular. State trademark registration only gives the registrant protection of its mark within that territory while the federal act provides registrants with much broader protection.

What is a trademark?

Under the Lanham Act, “[t]he term ‘trademark’ includes any word, name, symbol, or device, or any combination thereof— (1) used by a person, or (2) which a person has a bona fide intention to use in commerce . . . , to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”

The purpose of a trademark is to provide dual protection. Not only is it a mechanism for consumers to identify the source of a good or service, but it is also a technique for trademark owners to distinguish their goods and services from competitors. For example, consumers associate a black swoosh on apparel and footwear with the Nike brand. A well-established brand, like Nike, receives marketing advantages like consumer recognition, and in return, consumers can expect a certain quality when purchasing goods with the Nike swoosh on them.

Why the Fashion Industry Relies on Trademarks?

Designing clothing is not an easy task. Like anyone else who works hard in their profession, designers deserve recognition in their competitive industry and protection from competitors copying their work.

It seems ironic to say this because fashion is a billion dollar industry based off of trends. To create a trend, a style has to catch on, meaning multiple people are generally wearing the same thing. Essentially, we are all copying each other. So what gives designers this recognition they are looking for? What provides them protection from being copied? What sets them apart from others?—their trademark.

Why a Trademark & Not a Copyright?

Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works.” However, this protection is generally unavailable to articles that have a utilitarian function, often referred to as useful articles. Clothing is an example of a useful article; therefore, it cannot be protected by copyright laws. Some exceptions apply such as: artistic designs on textiles, images displayed on clothing (like a photograph), and costumes.

Unable to apply for a copyright in the United States, designers must rely on trademark protection. This protection gives designers the recognition many look for and sets them apart from competitors, preventing their work from being copied. Thanks to trademark law, consumers can purchase clothing, like Nike, knowing the quality of the goods they are buying and designers can receive the protection and recognition that they desire.

#LanhamAct #CommerceClause #Trademark