In a column a few years back (Design Protection: Pros and Cons) I discussed the efforts of the Council of Fashion Designers of America (the CFDA) a by-invitation-only industry group of about 400 designers, to get the Design Piracy Prohibition Act (and similarly named proposed legislation) enacted into Federal Law. Certain very successful designers, such as Diane von Furstenberg, have been championing such proposed laws for years, with the admitted purpose of intimidating and punishing any copying of some of their popular designs.

Year after year, every effort to obtain passage of these design protection laws has failed to succeed, due in part to the strong opposition of other designers and manufacturers. Those opposed to such laws think that setting tough penalties for copying registered designs would inhibit both new designs and a lot of business at various price points.

One designer has been quoted against such laws as saying, “My worry is that it will make people so frightened that fashion will stop dead in its tracks. I think fashion is like a live reef–all creatures feed off of one another and that stimulates growth and movement.”

That position, “that there is really `nothing new under the sun'” essentially agrees with the manufacturer who proudly admits, “Designers have for 100 years been going to Europe on boats and bringing inspirations from couture back and putting a spin on things. Nothing is original when it comes to silhouettes or a fabric.” That individual was quoted by WWD that such laws are, “not a good idea. It will create a lot of disruption and litigation, and people will worry more about what they can and can’t do as opposed to bringing fashion to the consumer.” This faction points out that the all-American blue jean has been copied over and over, with only good results for the industry and consumers.

Nonetheless, the CFDA continued its efforts to pass a design protection law, and in 2012 it got further than ever before. On September 20, 2012, the re-christened Innovative Design Protection Act of 2012 (the IDPA) was passed (“reported favorably out”) by the Senate Judiciary Committee. New York’s Senator Schumer has become the CFDA’s champion and this important step for the bill was the result of the usual legislative wrangling. The parallel bill in the House of Representative did not fare as well, and was lost in the aftermath of the recent election season.

If it is eventually signed into law, some version of the IDPA would provide a period of protection for fashion designs that “are the result of a designer’s own creative endeavor; and . . . provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles,”. Everything from undergarments to gloves, footwear, and headgear (plus handbags, belts, purses, wallets, tote bags, eyeglass frames and virtually everything else that can be licensed) would be eligible for protection from out-and-out copying so brazen that the copies could be mistaken for the originals.

The main changes in last year’s version of the bill were its dilution of its sections on enforcement. Among other things, an alleged violator would have received a notice and 21-day grace period before the original design owner could bring an enforcement lawsuit, giving alleged violators a chance to escape liability by “curing” the alleged violations before being sued. The 2012 bill also contained new limitations upon the damages that could be recovered, which would be limited to the damages the original design owner could prove occurred after the newly-required notice was given. Further changes may be proposed in 2013’s attempt to pass such a bill.

But most opponents of a design protection bill probably will remain opposed. Manufacturers and retailers continue to insist that the bill will make it harder and more costly to deliver fashionable clothes to the average consumer. Even the latest diluted penalties were seen as too great a threat to mass merchandising of popularly priced apparel that that looks fresh and new from one season to the next.

As in the past, whether you think that a design protection law is necessary, or that it’s dangerous and unfair, depends upon how you make your money or like to shop.

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