Monday, March 30, 2015

High Heeled Shoes: Low Level Legal Protection

Dear Rich: I make and sell high heel shoes. What I do is decorate with spikes, studs, feathers, embellishments etc., and sell them. But my biggest sellers which I call my signature design is the peacock feather that I place in certain areas of the shoe. So I wanted to know if I should copyright that design or do the design patent?
Design patents are sometimes granted for high heel designs -- here's one that incorporates a football motif -- but we don't believe your shoes are likely to qualify. One reason might be that you've already been offering the shoes (disclosures by the designer may be excused for one year prior to filing). Another reason might be a lack of novelty (others have made similar use of peacock feathers). And another might be that your designs, creative as they may be, are "separable embellishments." According to the USPTO:
"Design is inseparable from the article to which it is applied, and cannot exist alone merely as a scheme of ornamentation. It must be a definite preconceived thing, capable of reproduction, and not merely the chance result of a method or of a combination of functional elements."
Copyright. Copyright does not protect clothing, fashion and similar functional designs. You may be able to protect surface ornamentation for clothing if it is considered "separable" from the shoe itself.
Trade dress and trademarks. Trademark and trade dress law may assist if you can demonstrate that consumers associate the design or some aspect of it with you (an association that usually requires serious sales and advertising). That's the approach taken by the big guns like Gucci, Balenciaga, and Alexander McQueen. Otherwise, trade dress law is not likely to protect you (in light of this decision).
Bottom Line Dept. Sometimes -- and this is often true for custom made-clothing -- there is little legal protection available to stop fashion copycats (though Congress keeps trying). Although big fashion houses can wield trade dress claims, smaller designers with limited sales can't count on IP law, and must rely on the loyalty of customers seeking unique craft skills and vision.

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