US Senator initiates legislation to save fashion industry

The Schumer legislation balances the need to protect jobs and innovation in the fashion industry and the need to keep clothing cheap, affordable, and accessible.  Under the Schumer legislation, only truly unique fashion designs are protected. The standard for protection under the bill is that the design must be the result of the designer’s own creative endeavor and must provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.

Colors and patterns cannot be used in determining whether a design is protected. Furthermore, the protection begins when a design is made public and protection lasts for only a period of three years. Anything that has been created prior to the enactment of this legislation is considered public domain and cannot be protected.

In order for a design to count as infringing on a protected design, the copy must be “substantially identical,” meaning it is so similar in appearance that it is likely to be mistaken for the protected design. It should contain only those differences in construction or design which are merely trivial.

The bill also lists the limits on liability, meaning there is no liability for designs that are the work of a defendant’s independent creation and there is no liability for someone who copies the design for his or her personal home use.

The legislation also protects retailers and consumers from liability. Additionally, the bill reflects suggestions put forth by NetCoalition, which represents a large number of global Internet and technology companies, to mitigate concerns about secondary liability.

Finally, the bill puts a high burden on plaintiffs to bring a case to court, in order to limit the costs of frivolous litigation. The bill requires particularized pleadings, meaning that the plaintiff will have to plead facts establishing that he or she has a case and there are severe penalties for misrepresentation by a plaintiff.

Schumer noted that the Innovative Design Protection Act, of the 112th Congress, has unwavering support from key fashion stakeholders all across the country and Schumer will continue to fight tooth and nail to ensure that this legislation passes.

Council of Fashion Designers of America (CFDA)