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CFDA Could Be Getting Its Bill Protecting Fashion Design, After All

>> When Diane von Furstenberg was reelected president of the CFDA earlier this year, the one goal she specified she had for the organization was: "We’d like to pass the law against counterfeits and copying."

A bill that came to the House of Representives last year died after clothing manufacturers argued that protection against knockoffs would only encourage litigiousness — people arguing over who had the idea first. Yesterday, Senator Charles Schumer introduced a new bill, supported by both the CFDA and the American Apparel & Footwear Assocation (the latter had argued that the House bill would expose its members to lawsuits).

Would red carpet designs likely be covered? »

The proposed bill provides limited intellectual property protection to the most original design, and a designer who alleges his work has been copied must show his design has “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.” It also has to be proven that the copy is “substantially identical” — so close to the original that it can be mistaken for it. The bill would cover all fashion designs, including handbags, belts, and sunglasses, for three years after the item is first seen in public (at a fashion show, for example). Color, patterns, and graphic element are factors that can't be used in determining the uniqueness of the design, and a celebrity-worn dress likely wouldn't pass for protection.

Senator Schumer said he expected the bill to be passed in the Fall, and as Cathy Horyn points out, if the bill goes through, "the bar is extremely high to determine what qualifies as a unique and distinguishable fashion design. And the burden is on the innovative designer . . . Perhaps the upside for American fashion is that [the proposed legislation] will encourage designers to be more innovative."

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