Just as design patents for smart phones and yoga pants are recently making headlines, the Senate Judiciary Committee has approved a bill, S. 3523, entitled the Innovative Design Protection Act of 2012, which would extend copyright-like protection to fashion designs (the “Act”).

The protection of the proposed Act would extend to “fashion design[s],” defined as the appearance as a whole of an article of apparel including men’s, women’s or children’s clothing, including undergarments, outer wear, gloves, footwear, headgear, handbags, purses, wallets, tote bags, belts and eyeglass frames. Given that many other countries already have laws that provide design protection for fashion design, the passage of the Act has the potential to help encourage and sustain the U.S. fashion industry.

The essence of the bill, which is sponsored by Senator Charles Shumer of New York, is to protect fashion designs from knockoffs that are substantially identical in overall appearance to the original elements of the design. Under the proposed Act, protection would be limited to unique, distinguishable, non-trivial and non-utilitarian variation over prior designs. The protection would not extend to parties that independently came up with the same design, reproduced a single copy of the design for personal or immediate family use (the “Home Sewing Exception”) or shows the fashion design in an illustration or picture. Moreover, while typical copyright protection lasts for the life of the author plus 70 years, the proposed fashion design protection would only last for 3 years. As to enforcement, the proposed Act would require a design owner to provide written notice to an accused infringer 21 days prior to instituting an infringement action, and limit the design owner to prospective damages from the date that the action is instituted.

The bill will amend Title 17, the Copyright Act, Section 1301 of the United States Code. The companion bill in the House of Representatives is H.R. 2511.

Gibbons will continue to track this important development in the area of copyright protection for fashion designs.

Owen J. McKeon is a Director in the Gibbons Intellectual Property Department. Christopher H. Strate, an Associate in the Gibbons Intellectual Property Department, co-authored this post.