Passing off is a common law remedy for protecting an unregistered trademark. Trade dress consists not of words or symbols, but of a products packaging or image, more broadly. Material in this book is for educational purposes only. A number of amazons international sites are on the u. Perspective jonathan hyman, charlene azema, and loni morrow. A products physical appearance, including its size, shape, color, design, and texture. But trade dress rights dont come about by accident. The revised second edition of fashion law provides authoritative information. Contributions to our blog are made primarily by members of phillips nizers fashion law practice group, with additional contributions from related. Bloomsbury is the leading publisher in the field of fashion, with over 200 titles available within both theoretical and applied fashion, from student guides to academic reference. Product configuration, the design and shape of the product itself, may also be considered a form of trade dress. Two pesos unquestionably establishes the legal principle that trade dress can be inherently distinctive, see, e. An interview with simon crompton, creator of the blog.
Ellen byerrum is a novelist, playwright, reporter, former washington d. The fashion industry law blog provides highlights on legal issues, business news and colorful anecdotes related to the fashion and apparel, jewelry, accessories, textiles and related industries. Brand protection in fashion trademark and trade dress topics. Think of this as fashion intellectual property law for dummies. Like a traditional trademark, trade dress is a form of commercial shorthand that provides a sourceassociating cue for the unthinking purchaser. Fashion law provides a concise and practical guide to the full range of legal issues faced by a fashion company as it.
Common types of intellectual property rights include, trademarks, patents, industrial design rights, trade dress, and in some jurisdictions trade secrets. Find the top 100 most popular items in amazon books best sellers. Updated to reflect recent legal decisions and regulatory developments, this revised edition covers such a vital issues as intellectual property protection and litigation, licensing, anticounterfeiting, startups and finance, commercial transactions, retail property leasing, employment regulations, advertising and marketing. The lanham act protects trade dress if it serves the same sourceidentifying function as a trademark.
Similarly to other types of trade marks or service marks, infringement of a trade dress happens when there is a likelihood of confusion by customers between similar goodsservices and their sources. This exceptional paperback may be used as the main text in an advanced course devoted to trade dress and designs, or may be used as a supplemental text for an advanced survey course or a variety of other intellectual property courses. Nyu stern and nyu school of law fashion law and business instructors. Joshs pro bono includes representing asylum seekers before the department of homeland security, as well as iprelated matters for the american theatre wing, comic book legal defense fund, fashion law institute, and others, including various leading lgtbq nonprofits. Learn vocabulary, terms, and more with flashcards, games, and other study tools. Duane morris llp protecting fashion designs through ip law. Trade dress is a part of trademark law, which is primarily governed by the. It is possible to register trade dress as a trademark, but for practical reasons most trade dress and product configurations are. This difference between trademark and patent law can be explained by their respective underlying rationales.
Recently, there has been the implementation of the trade dress under the lanham act which will protect the look and feel of a design based on two criteria. Functional aspects of trade dress cannot be protected under trademark law. Reflections on colgate v anchor anu tiwari the west bengal national university of juridical sciences, n u j s bhawan, 12 l b block, sectoriii, salt lake, kolkata 700 098 received 20 april 2005, revised 16 august 2005 the trade dress or getup of goods has long been recognized as. Building on their wellreceived casebook, trademarks and unfair competition. Regarding its trade dress infringement claim, alor had to show that 1 the trade dress is nonfunctional. Hot products owns a patent for a fan motor that it uses in ceiling fans. You might say, but wait a minute, a book is functional. Four months after filing for bankruptcy protection, a u. Protecting fashion designs through ip law duane morris llp. Since 1927, industryleading companies have turned to sheppard mullin to handle corporate and technology matters, highstakes litigation and complex financial transactions.
Discussion sessions covered fashion and creativity, intellectual property law, fashion and entertainment and the future of sharing. Like a trademark, a products trade dress is legally protected by the lanham act. The law on designs in europe, particularly under the community design system, has evolved significantly since 2010. Taking you through the book from start to finish a whistle stop guide beginning. Fashion law has given designers the legal ground to stop copycat designs from being produced. Getup, packaging, business strategy, marketing techniques, advertisement themes etc. Trademark law offers federal and common law protection for a word, symbol or phrase used by producers to identify their products, as long as it serves as a source identifier. Christian louboutin, a fashion designer best known for his use of red lacquer on the outsole of the shoes he designs, appealed the district courts order denying a motion for preliminary injunction against alleged trademark infringement by yves saint laurent ysl. Pdf the article frames the emerging field of fashion law and. Trade dress wex us law lii legal information institute.
In general, these rights consist of patents, which protect novel and. To receive the benefit of trade dress protection, a company should deliberately plan and consistently execute a trade dress strategy. What is trade dress and how is it different from a trademark. However, unlike traditional trademark law that protects words or logos, trade dress law protects the total packaging and design of a product. Supreme court rules on trade dress dispute already v. Patent and trade secrets become relevant when the fashion company has. They also have trade dress protection of their store design and. Trade dress, like other forms of trademark, also really only helps out famous designs or big brands that. Trademark and trade dress litigation model jury instructions series. Trade dress can be protected as getup under the law of passing off in the uk.
Forever 21 has managed to avoid liquidation and will remain open to some extent thanks to a newlyapproved deal. Trade dress assertions in the fashion industry are difficult because the designer must prove secondary meaning. Trade dress in product design by loren lunsford, esq. The traditional approach historically, trade dress referred only to the manner in which a product was dressed up to go to market with a label, package display card and similar package elements. Trade dress and design law, elective series elective and millions of other books are available for amazon kindle. Bcbg alleged that their bandage dress was a high fashion garment with a singular trade dress featuring a combination of nonfunctional elements. Julie zerbo above, editorin chief of the fashion law discusses. Jimenez is an academic advisor to the fashion law committee of the new york. Trade dress protecting and registering trade dress, trade.
The fashion law a trusted daily source for law, business. Trade dress is a type of trademark law that extends to the configuration design and shape of a product itself. Trade dress is the characteristics of the visual appearance of a product or its packaging that. In addition to a products physical appearance, trade dress may also refer to the manner in which a product is packaged, wrapped, labeled, presented, promoted, or advertised, including the use of distinctive graphics, configurations, and. A trademark is a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods from one person or entity, from those of another. Like a trademark, a products trade dress is legally. A guide for designers, fashion executives, and attorneys. The woman in the dollhouse is her first suspense thriller.
While trade dress law protects the overall look and feel of a product or its packaging, trademark law protects logos, words, symbols, taglines, or names associated with a product or service. A subset of trademark law, trade dress, is a particularly relevant type of. Image and overall appearance of product protected by trademark law. Trademark law, and specifically trade dress law, can be contrasted with patent law, which clearly allows one to have a monopoly for a product design or function for some definite period of time. Trade dress and design law elective aspen 9780735568327.
So trade dress can be a valuable method of distinguishing your company from others in a way that trademark law as most typically think of it cannot. Sheppard mullin is a fullservice global 100 firm with more than 900 attorneys in 15 offices located in the united states, europe and asia. I n s i d e t h e m i n d s navigating fashion law leading lawyers on protecting client brands and following industry trends 2016 edition 2016 thomson reutersaspatore. These are just the nuts and bolts of trade dress law. Law and policy, the authors present trade dress and design law, the first student text to offer an integrated treatment. We also offer the multiaward winning bloomsbury fashion central digital platform, which includes the berg fashion library and the fashion photography archive. Posts about fashion law written by fashion industry law blog. For example, a company that claimed trade dress on a round beach table lost their rights when the seventh circuit determined that the towel design was primarily functional despite the fact that the trade dress had been. Associate tiffany johnson delivered the fashion law presentation fashionably. Apple, for example, has a registered trademark in their logo. Brand protection in fashion apparel, accessories, beauty and. Sally copies photographs from isaiahs book mount everest. Origins of trade dress trade dress is a trademark concept.
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