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The Zest

Your dress design is not protected, your label is: trademark vs copyright for fashion

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In the United States, the cut of a dress is not protected by copyright. The silhouette, the neckline, the hem length, the way the sleeve is set: anyone can copy those. What copyright can protect is the artwork on the garment, like a print or an embroidered graphic, if that artwork can stand on its own as a picture. And what trademark protects is your label, your name and the marks that tell a buyer the dress came from you. If you remember one thing from this article, remember that your brand is the asset the law will defend, and the design mostly isn't.

That's hard news for designers, so let me show you where it comes from.

Three laws, three different jobs

I wrote about the general split in the article on trademark, copyright and patent. For fashion specifically:

  • Copyright covers original creative works: the pattern printed on your fabric, your lookbook photos, your logo artwork. Not the garment's shape.
  • Trademark covers whatever identifies the source of the goods: your brand name, your logo, and in rare cases a design feature that shoppers have learned to read as a signature.
  • Design patents cover "any new, original and ornamental design for an article of manufacture," for a term of 15 years from grant. The design has to be new, and the filing runs through the patent side of the USPTO, so most small brands never file one.

The Copyright Act has a category for "pictorial, graphic, and sculptural works," and it carves out a problem child called the useful article. The statute defines a useful article as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." Clothing keeps you warm and covered. It's a useful article. The Copyright Office's own guidance lists clothing first among its examples, and it says copyright in a work depicting a useful article "does not extend to the design of the article that is portrayed," using a dress design as the example.

The statute then opens a narrow door. The design of a useful article counts as a protectable work only to the extent it has features that "can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." Lawyers call that separability. For decades courts disagreed about how to test it.

Star Athletica: the stripes, not the uniform

In 2017 the Supreme Court settled the test in Star Athletica v. Varsity Brands. Varsity makes cheerleading uniforms and holds copyrights in the chevrons, stripes and color blocks on them. A competitor sold uniforms with similar designs. The Court held that a feature of a useful article is eligible for copyright if it "can be perceived as a two- or three-dimensional work of art separate from the useful article" and "would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium" if imagined separately.

Varsity's surface designs passed. Imagine the arrangement of stripes and chevrons lifted off the uniform and painted on a canvas, and you have a graphic work. But the Court was careful about what Varsity didn't win. Even with valid copyrights in the surface decoration, Varsity has "no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions." The statute, in the Court's words, "does not protect useful articles as such."

That is the whole fashion rule in one case. Prints, yes. Cuts, no.

What that means for a working brand

Here is the part that surprises people: it means the most valuable thing in your line, the fit people come back for, is free for anyone to copy, and the thing you can protect with copyright is the graphic on top of it.

So think in two layers. If you design your own prints, embroideries or placed graphics, those are the kind of works copyright covers, and you can register them with the Copyright Office. A registered print gives you something concrete to point to when a copy shows up. A silhouette gives you nothing.

If your identity lives in the cut rather than the print, copyright can't help, and the question becomes whether trademark law can.

Trademark can reach a design, but not on day one

Trademark law protects source identifiers, and a design feature can become one. Think of a stitch pattern on a pocket, a stripe placement, a hardware shape. The problem is proof. In Wal-Mart Stores v. Samara Brothers, a 2000 Supreme Court case about children's seersucker outfits with appliqués, the Court held that "a product's design is distinctive, and therefore protectible, only upon a showing of secondary meaning." The Court reasoned that "design, like color, is not inherently distinctive," because consumers know that even "the most unusual of product designs" is "intended not to identify the source, but to render the product itself more useful or more appealing."

Secondary meaning means the buying public has come to associate that feature with one brand, and you have to prove it with evidence. That takes consistent use over time and marketing that points at the feature. A brand in its second season rarely has it. I wrote about how the big names fight over this in the article on dupes and trade dress, and even they struggle.

The same logic shows up at the USPTO when a brand tries to register a design on the garment itself. A pattern across the front of a shirt tends to be read as decoration, and the application draws an ornamental refusal unless the brand can show the design has come to point to a source. I explained that refusal in the article on ornamental refusals.

Where to put your protection budget

Ranked by what it will do for a small fashion brand:

  1. Register your brand name as a trademark in Class 25, and your logo if the logo is distinct from the name. That's the asset that stops copycats from trading on your reputation, even when they copy the cut.
  2. Register copyrights in original prints and graphics you plan to reuse across seasons.
  3. Make your labels, tags and packaging unmistakably yours, so a knockoff of the dress is never a knockoff of the brand.
  4. Consider a design patent only for a signature piece you'll sell for years and that's new enough to qualify.

The founders who get burned are the ones who assume the design is the brand. Under U.S. law, the label is the brand. Build it like you mean it.

If you want to talk through which parts of your line can be protected and how, you can see how the search and filing packages work on the services page, and the FAQs page answers most of what comes up before a first call.

Book a free 15-minute discovery call with the attorney (opens in a new tab)

(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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