Saper Law hosted a panel of fashion industry experts to discuss various issues affecting the apparel entrepreneur in sourcing fabric and trim. Topics included best practices when sourcing, as well as copyrights, trademarks, and other legalities that arise when conducting business in the apparel industry.
The event began with a discussion led by Xochil Scheer, of the Apparel Agency, about the differences between importing materials and sourcing domestically. The Apparel Agency provides both niche fashion startups and large corporations with preparation, management, and support throughout the development process. Xochil discussed some of the complications that may arise when working with international manufacturers, and how a client must balance the emphasis on speed to market with quality concerns. Especially when working with an international source, it is important to understand the nuances of the production and manufacturing process, or hire somebody who does.
Nichole Rairigh from the Apparel Agency shared her expertise on the local resources available to help the aspiring fashion entrepreneur form an idea into a product. Nichole also underscored the importance of hiring knowledgeable people when working with a factory in implementing a design. She emphasized that while it is important to pay attention to trends, often the most basic designs are the ones that become the most popular.
Daliah Saper and Shyla Jones rounded off the legal aspect of the panel with a discussion on how trademark and copyright law apply to the fashion and apparel industry.
A copyright can cover anything that is creative in nature that is fixed in a tangible medium. Pictures, music, songs, and written work are all subject to copyright protection. Clothing patterns (i.e., the “silhouette” of a garment) are not protected by copyright because these are considered to be “functional” in nature. Copyright deals with the right to reproduce, the right to create derivatives, and the right to distribute (and less relevant to fashion are copyright’s protection of the right to perform and the right to display).
Part of the discussion on copyright was devoted to issues surrounding the use of vintage fabrics – a growing trend in the industry. Daliah stressed the importance of hiring a qualified attorney when navigating the waters of copyright law in relation to the use of vintage fabrics. The year in which the original design was produced can affect the rights that a secondary producer may have to modify or embellish on the design.
Daliah explained the First Sale Doctrine as it relates to using another designer’s materials. When creating something else from an original design, or embellishing upon one, it is important not to claim that the modified form of the item came from the original designer. Also, passing off an embellished item in its entirety as your own design is not a protected by the first sale doctrine. When embellishing an item, It should be clear that the garment originated from initial manufacturer.
Trademark, on the other hand, is meant to protect the consumer so that he or she may know the source where an item is coming from. A fashion designer may be able to protect the print of a material with a trademark, but not the pattern (i.e., the how the clothing may lay on a person). The use of an identifying print, for example, may qualify a design under a subset of trademark law known as “trade dress.” Trade dress applies when the print on the garment identifies its source. Well-known examples of trade dress are “Burberry Plaid,” “Tiffany Blue,” or “Louboutin Red.”
Daliah and Shyla discussed of the landmark case in which Christian Louboutin brought suit against Yves St. Laurent for infringing on Louboutin’s trademark red soled shoes. While the District Court ruled that color was a functional aspect, and could not be trademarked, the Second Circuit Court of Appeals overruled this decision, stating that the color of a garment can be non-functional in nature, and as a source identifier it may be subject to trademark. It is important to note that the Court limited the scope of this ruling to color used in an identifying nature, like a specific color of red on the sole of a shoe. The same trademark protection would not apply to a shoe that is all red, or monochromatic.
To trademark a color or descriptive mark, a designer must establish “secondary meaning.” To establish such secondary meaning, the U.S. Patent & Trademark Office assumes the color or name must be used for at least five years; however, this may be obtained sooner where a designer devotes a lot of resources to advertising to increase recognition. In order to obtain trademark protection for a name such as “Armani,” or “Donna Karen,” the name must have developed some secondary meaning over time.
A qualified attorney will be able to help you with the appropriate filings for your brand’s trademark, and help your business navigate the various legalities surrounding the use of materials from other manufacturers and vintage patterns. Call Saper Law today to help you protect your brand and advise you on all intellectual property matters matters pertaining to getting your fashion ideas off the ground!