Most likely no. “Fashion design is the art of applying design, aesthetics, clothing construction and natural beauty to clothing and its accessories”.“Copyright protection for the designs of useful articles is extremely limited. The design of a useful article is protected under copyright “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101 (definition of “pictorial, graphic, and sculptural works”).

Fabric prints and sketches can have copyright protection, the print found on the fabric of clothing, or the sketch of the designs are copyrightable to the extent it meets the three requirements for protection: fixation, expression, and originality, since fabric patterns exist separately from the utilitarian nature of the clothing.

Colors are not protected by copyright; colors could be protected through trademarks. Single or multiple color marks applied to packaging are never inherently distinctive. Marks that are inherently distinctive are those that have the ability upon being used the very first time to communicate to the consumer that the mark is identifying the source of the product as opposed to describing the product itself.

As to single color marks, the question becomes whether the color is generic for the identified goods and thus unregistrable under Trademark Act Sections 1, 2 and 45 because it cannot function as a mark.

Furthermore, a recent U.S. Supreme Court decision, Star Athletica, LLC v. Varsity Brands, Inc (2017) held that there is “no right to prohibit any person from manufacturing [clothing] of identical shape, cut, and dimensions”.

A fashion design can additionally be protected, via Design patents. However, design patents are difficult and expensive to obtain, and entail a lengthy examination process. As with every patent, they eventually expire, in the case of design patents, the term of the design patents is 15 years from the date the patent is issued.

I have helped countless small to medium sized businesses navigate the intricacies of protection of fashion designs to secure and protect their intellectual property rights. I’d like to help you too by protecting your rights to trademarks, copyrights, and other intellectual property rights in the US and overseas before someone else does.

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