A Review of European Design Protections Does Not Support the Fashion Industry Contention that Congress Should Single Out Fashion for Special Design Protection

Abstract

At the 2006 hearings on the Design Piracy Prohibition Act, Jeffrey Banks called design piracy a “blight,” and asked Congress for legal protections for America’s fashion designers, arguing that the European industry was more vibrant because Europe’s fashion designers received legal protection for their designs under European design right laws. This paper argues that the proposed protection for fashion design is unnecessary and, even, harmful to the fashion industry. Copying has always been part of the creative process, and is, actually, important to the success of the fashion industry. The proposed Design Piracy Prohibition Act is far more likely to function as a “lawyer-employment bill, not a fashion-industry protection bill.” A review of European law demonstrates that it does not in practice, protect fashion design in the manner proponents of U.S. legislation imagine. Even if European design law does provide some protections not available to U.S. fashion designers, for a variety of legal and cultural reasons, these laws are rarely used by European fashion designers to prevent design copying. Finally, it is argued that Congress should consider following Europe’s lead in protecting market entry level industrial design, but the new law should focus on the needs of all design industries, as European law does, rather than single out fashion, or indeed, any other industries, for special status.