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Protection from Unwanted Flattery

By Jason D. Sanders

Imitative clothing designs have become increasingly problematic for designers in recent years, as cell phone cameras, instant data transfers, and fast and cheap overseas manufacturing have compressed the timeline between when a new design hits the up-market catwalk and when the copycat version hits the down-market retailers. Designers often complain that nearly identical though often cheaply produced knock-offs appear in stores almost immediately after the original version is released or previewed at fashion shows.

For the last several sessions, Congress has considered the Design Piracy Prohibition Act, which would expand copyright protection to include the cut and look of fashion designs. This proposed legislation could make many imitative designs illegal and add to the current, although somewhat limited, protections for fashion available under existing U.S. trademark, patent, and copyright laws. This article discusses these currently available protections, provides suggestions for designers for utilizing them, and examines changes to the Copyright Act proposed by the Design Piracy Prohibition Act.

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