Jasper, Summer and Dak, also known as the Trio, have come up with a design for a new women’s jacket. The jacket is a black, gold studded, floor length garment perfect for the style conscious market of 14-23 year old girls. The jacket will include logo branding and be mass-produced for a wide market. However, the Trio is so wrapped up in their creative process that they need guidance on how to protect their intellectual property.
Intellectual Property (IP) is a series of laws that dissuade the replication of another persons work. IP is a term used to describe various legal avenues of copy protection, whether it is copyright or trademarking. However, within the fashion industry serious flaws in the protection of original design exist.
Copyright is a form of legal protection that protects original ideas whilst limiting replication. In New Zealand, copyright is granted automatically to original ideas when put into physical form and covers works of “original literary, dramatic, musical and artistic works, sound recordings, films, communication works and the typographical arrangement of published editions” (Copyright Council of New Zealand, n.d.).
Although a product or idea does not require registration in New Zealand, copyright law protects the work for a time ranging from 25 to 50 years (Copyright Council of New Zealand, n.d.). In its very nature, copyright law encourages innovation and growth. It demands that each idea or original work be a genuine product of the creative being, allowing ease of mind for creative people across the various disciplines included within the creative industry (Bainbridge, 1996).
Whilst copyright on a global scale does not exist, the Protection of Literar...
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Not to be confused with functional elements of the product, Trade dress trademarks aren’t as easy to defend. For a trade dress argument to be accepted in court, the creator must prove secondary meaning in order to clearly define its ‘inherent distinctiveness’ (Herzfeld, 2013).
Furthermore, trade dress arguments need to prove that the customer is inherently confused as well as avoiding the argument of functionality when referring to similarities between products. In the case of Henri Bendel Inc vs. Sears, Roebuck and Co., the court analysed the components of a private label cosmetic bag and similar bags sold in Sears department stores. The court held that the Bendel bags were not protectable under trade dress laws because the similarities between the bags – the gold zipper, striped design and plastic coated fabric – were all functional (Blackmon, 2007).
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