Published by LawTechie - September 27, 2010 - LawTechie

NY Sen. Schumer has proposed a law to provide enhanced copyright protection for fashion designs (recall that common-law currently provides some level of protection on the “separability” theory and that trade dress infringement is otherwise used to protect against design theft). Schumer’s proposed law would allow pre-registration infringement suits and would protect designs for 3 years (which many have pointed out is the equivalent of an eternity in the fashion world).

An excellent analysis of the pros and cons of design protection (as well as the current state of affairs in this field) can be found here. A major concern, in my opinion, is the inherent line-blurring between expression and utility in clothing design — Schumer’s law may unwittingly protect obvious design features, thereby providing designers with an unfair market barrier against competition.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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