Fordham Law

One Step Closer (But Not There Yet): Design Protection Bill Passes Senate Judiciary Committee

Susan Scafidi in Fashionista, December 01, 2010

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This morning brought news that the Senate Judiciary Committee unanimously passed the “Innovative Design Protection and Piracy Prevention Act,” a bill introduced three months ago by New York Senator Charles E. Schumer to provide “very limited intellectual property protection to the most original design,” WWD is reporting.

If all goes well, and the bill passes the Senate and the House and becomes a law, designers will, for the first time, be able to file for copyright protection for their patterns and designs. As it stands now, copyright statute only offers protection for trademarks (like Chanel)–which can include specific prints–but not for actual cut-and-sewn patterns. When we asked Susan Scafidi, intellectual property attorney and director of Fordham’s Fashion Law Institute, to break down the implications of the bill should it pass into law she told us it could: a) protect a new design for three years after it’s been put into production, b) spur creativity in mass retail, and c) stop designers–peers–from knocking each other off.

Of course, that’s a very big “if.” “We’re one step closer to making this a reality,” says attorney Anne Sterba, who represented Valentino in the settlement of a 16-year trademark case, “but there are still several more steps in the process and throughout each step the language will change. The bill will look different after it goes through the Senate and the House, and the concern is that the definition of a ‘unique and original’ design will be given a narrow drafting.”

And ultimately, if the bill becomes a law, the courts will decide what a “unique and original” design is. Sterba, an attorney with the intellectual property firm Rothwell, Figg, Ernst & Manbeck, points out that these cases would likely be settled in the Southern District of New York since that’s where most designers are based, and it’s there that we would get a “really good definition” of what a “unique and original” design is, as protected by this new bill.

There’s a chance the bill could end here–many have been presented before Congress in the past and none have passed. But designers are excited by the promising news. Just look at the exclamation points at the end of the CFDA’s tweets today: “Fashion history was made with IDPPA!! IDPPA will STOP knock-off artists who replicate and profit off of another designer’s work!”