SCHUMER BILL TO PROTECT AMERICAN FASHION INDUSTRY FROM OVERSEAS COPY-CATS PASSES JUDICIARY COMMITTEE

Normal 0 false false false ENUS XNONE XNONE MicrosoftInternetExplorer4

Today, United States Senator Charles E. Schumer announced that the Senate Judiciary Committee, passed his legislation to protect the New York and United States fashion industry from copycat knock offs. The legislation provides a very limited intellectual property protection to the most original fashion designs - those that are extremely unique and extraordinary - and does so in a way that limits unwarranted litigation. The bill is a product of an intensive year of negotiations with Senator Schumer, the Council of Fashion Designers of America and the American Apparel and Footwear Association. The bipartisan support from the Judiciary Committee puts the bill in a strong position for final passage in the full Senate.

"This is a major step forward for the New York economy and the United States fashion Industry," said Schumer. "The fashion industry is an essential part of New York City's economy, employing hundreds of thousands of people in hundreds of companies. For too long, the industry has been at an unfair disadvantage because greater protections are afforded to overseas competitors. Unregulated, highend knock offs are hurting the integrity of this industry. This legislation levels the playing field with overseas designers."

The fashion industry plays a vital role in the New York economy.  The fashion industry employs nearly 200,000 people in New York City alone and generates $9.6 billion in total wages, and tax revenues of $811 million.  Over 800 fashion companies are headquartered in New York City, more than double the number in Paris, yet French designers have greater copyright protections.  Twice a year, Fashion Week in New York generates $466 million in direct visitor spending, leading to $782 million in total economic impact per year.  These jobs and this revenue for New York are currently in jeopardy because the United States does not provide any protection for fashion designers against having their designs pilfered.  Without action, the U.S. risks losing jobs to Europe or to Japan, which offer more stringent intellectual property protections to shield the industry from design thieves.

The Schumer legislation balances the need to protect jobs and innovation in the fashion industry and the need to keep clothing cheap, affordable, and accessible.  In the bill passed by the Judiciary Committee today, only truly unique fashion designs are protected. Under the bill passed out of committee today, the standard for protection requires the design be the result of the designer's own creative endeavor and provides a unique, distinguishable, nontrivial and nonutilitarian variation over prior designs for similar types of articles. Colors and patterns cannot be used in determining whether a design is protected. Furthermore, the protection begins when a design is made public and protection lasts for only a period of three years.

In order for a design to count as infringing on a protected design, the copy must be substantially identical, meaning it is so similar in appearance that it is likely to be mistaken for the protected design. Everything that has been created prior to the enactment of the bill is considered public domain and cannot be protected.  The bill puts a high burden on plaintiffs to bring a case to court, in order to limit the costs of frivolous litigation.