Innovative Design Protection Act (IDPA) of 2012 - Essay Example

? Legal Context of Fashion & Design Industry: IDPA of Legal Context of Fashion & Design Industry: IDPA of The InnovativeDesign Protection Act (IDPA) of 2012 is the new version of the protection bill developed for fashion design. The bill, which was reintroduced into Congress by Senator Chuck Schumer of New York, was initially proposed in the year 2006. A number of modifications were introduced in the 2012 version of the legislation. Firstly, the new version consists of a short title; Innovative Design Protection Act (IDPA), which replaces the rather mouthful Innovative Design Protection and Piracy Prevention Act (IDPPPA). Additionally, the new version makes provisions that require detailed written notices to be issued to suspected infringers and a 21-day suspension on the start of an action following that notice without the accrual of damages during these three weeks (Sara 2010, p. 12). The act has many far-reaching effects on the design industry within the US. At its core, the act is primarily focused on not only protecting designers, but also protecting their creativity, as well as job security (Jimenez & Kolsun 2009, p. 94). This paper will provide a succinct description of the primary features of the 2012 IDPA, discussing how the act is going to revolutionize the legal defense of designs in the US. The IDPA proffers copyright protection to all fashion designs in the US. The act revises the meaning of the term useful article in order to include, among others, articles of apparel such as tote bags, eyeglass frames, handbags, clothing, wallets, purses and belts (Richman, Denton & Behr 2012, p. 179). However, the act excludes, from legal protection, all designs that are embodied in useful articles whose designers or owners make public. This legal protection is deterred if such publication occurs more than two years prior to the date of the request for registration, specifically in vessel hull designs. Additionally, the legal protection is excluded for useful articles whose publication takes place more than three years prior to the date when protection of the design is provided, specifically in the event of fashion designs. In addition to these exclusions, the act also deters the consideration of the absence or presence of certain or of a graphic or pictorial work imprinted onto a fabric when ascertaining the protection offered to a fashion design. The act ideally sets out the full term of protection at three years for fashion designs and at least a decade for designs of vessel hulls (Richman, Denton & Behr 2012, p. 117). The provisions of the law require the owners of all fashion designs to offer written notifications of the design protection to all persons the design owners have sufficient reasons to believe have violated or will probably violate these protections. The act additionally makes illegal all actions aimed at the infringement of fashion designs from the start until three weeks after such written notice is served to the defendant (The Library of Congress n.d., p. 1). The act is quite significant to the design industry since it provides pertinent modifications to the infringement criteria applicable to sellers, retailers, distributors and importers of infringing articles who were not necessarily involved in making the articles. Another critical importance lies in the act’s revision of provisions dealing with acting without knowledge, affirming that it does not constitute an infringement to create, sell, import of distribute articles embodying designs that were created without knowledge, either reasonably inferred from all circumstances or actual occurrences, that the designs were protected and were copied from protected designs (Jimenez & Kolsun 2009, p. 154). Moreover, the act declares that it does not constitute an infringement under specified federally guaranteed protections of original designs, to engage in the provisions of services such as telecommunications services, location tools for Internet information and Internet access services, as well as transmission, retrieval, hosting, storage, translation or communication, without alteration or selection of contents of communication, save for deletion of certain material or communication made by other individuals in ways consistent with the 1934 Communications Act (Gans, Hsu & Stern 2002, p. 571). However, the act deters consideration of a vessel hull design as having been copied from protected designs if they are original and not appreciably the same in terms of appearance with the protected designs. Moreover, the act disallows considering fashion designs as having been copied from protected designs if they are not considerably identical in visual appearance to original aspects of protected designs or if they are the outcomes of independent creations (The Library of Congress n.d., p. 1). The applicability of the IDPA to the modern design environment emanates from its rewriting of the remedies for infringement, affirming that in the event of vessel hulls, owners of the designs are entitled, subsequent to the issuance of registration certificates to institute actions for any design infringements (Raustiala & Sprigman 2006, p. 1710). Moreover, in the case of fashion designs, the IDPA entitles design owners to institute legal actions for all design infringements subsequent to the publication of the designs and the three week notice period enshrined in the act. Therefore, the revised act enhances the magnitude, as well as intensity, of penalties imposed for false representation. However, regardless of its provisions, the IDPA leaves out protected fashion designs from provisions such as seizure and forfeiture, as well as importation enforcement regulations established by the US Postal Service (USPS) and the Secretary of the Treasury. Moreover, the act consequently diminishes the applicability of these provisions and regulations to specified vessel hulls (Volino, Cordier & Magnenat-Thalmann 2005, p. 601). Accounting for at least $350 billion in annual sales and 4 million US workers, the US fashion industry embodies one of the country’s largest originators of economic growth. The industry also signifies a key outlet for artistic forms of expression. To this end, the fashion industry in the US has long been actively engrossed in public-policy dialogues regarding intellectual property, as well as fashion design (Jimenez & Kolsun 2009, p. 201). As the core, this dialogue is essentially concerned with establishing intellectual property rights for three-dimensional designs for clothing articles or footwear. This discussion wrapped the US fashion industry in the question of how original and innovative fashion designs can be protected without stifling originality, hindering the industry’s business capacity and prompting frivolous lawsuits. The IDPA legislation represents a workable and practical approach to the valid yet narrow issue of design piracy. The legislation improves the legal protection of fashion designs in the US by extending intellectual property protections to new areas of the fashion world while simultaneously preserving the industry’s capacity to deal with emerging trends and conduct business effectively without undue interference (Antonelli 2007, p. 463). Perhaps most importantly, the IDPA legislation significantly curtails frivolous lawsuits by plainly describing various infringement standards, enabling fashion-related trends to thrive at optimal speed. Not to be mistaken with the previous, broad adaptations of the legislation dealing with design-privacy, the IDPA sums up the compromise struck between the Council of Fashion Designers of America (CFDA) and the American Apparel & Footwear Association (AAFA) (Volino, Cordier & Magnenat-Thalmann 2005, p. 598). This compromise, which eases the implementation of legal protections of designs, was reached at least two years prior to the enactment of the IDPA. The legislation establishes improvements, which are designed to enhance the strength of the underlying legislation. In addition, the legislation does away with the confusion inherent in previous versions by making it clear the elements of fashion that can be afforded protection, as well as those that are not protected. For instance, the legislation disallows the protection of components of fashion articles such as sleeves, but rather focuses on protecting the entire article (Pisano & Teece 2007, p. 279). On the other hand, since the law deters the protection of articles in the public domain, for instance, cargo shorts, the legislation effectively deters the incident of frivolous lawsuits, which have the capacity to affect the fashion industry negatively. Moreover, by specifying the degree of identicalness, which can constitute deliberate copies of fashion articles, the legislation ensures that designers who come up with designs that are almost the same as those of other designers are not victimized on account of the design similarities. In addition, the IDPA deters opportunities for frivolous lawsuits, which can diminish the creative process of original designers. This is primarily because the legislation clearly defines the system through which designers can bring claims or defend themselves against claims through the development of the fortified three-step process of pleading. In the pleading process, the legislation provides for the placement of the burden of proof squarely on the plaintiff. The plaintiffs have to demonstrate that the designs are, indeed, protectable, and that the infringing design is considerably identical (Antonelli 2007, p. 469). The legislation also mandates the plaintiff to prove that the defendant had sufficient access to the protected design and used this access to duplicate the original article. All in all, the enhanced pleading requirement deters the entry of mischief into the courtroom or court processes involving legal protections of designs. Moreover, the IDPA also provides two practicable defenses, which can be utilized to fight against claims of infringement. These defenses include establishing the lack of originality in a protected design or independent creation. For instance, if a designer claims infringement on a design by another designer, the latter designer can show that either the design is unoriginal, as the first designer claims, or that both designers developed similar designs while operating independently from each other (Jones 2002, p. 64). Lastly, new to the legislation and encouraged by the CFDA and AAFA is the need for an obligatory written notice from copyright holders to suspect infringer after the infringer is provided three weeks to rectify the problem before the lawsuit is filed. Essentially, since the input of industry stakeholders was used to develop the IDPA, the legislation effectively represents the full scope of the US footwear and apparel industry from manufacturing and compliance testing to retail (Gans, Hsu & Stern 2002, p. 573). The IDPA provides heightened levels of protections for original works without deterring the free flow of business presently enjoyed by the highly inspired and fast-paced industry. References Antonelli, C 2007, “Technological knowledge as an essential facility”, Journal of Evolutionary Economics, vol. 17, pp. 451-471. Gans, JS, Hsu DH & Stern S 2002, “When does start-up innovation spur the gale of creative destruction?” RAND Journal of Economics, vol. 33, no. 4, pp. 571-586. Jimenez, GC & Kolsun, B 2009, Fashion law: A guide for designers, fashion executives, and attorneys, Fairchild Publishing, New York. Jones, R 2002, The apparel industry, Wiley-Blackwell, New Jersey. Pisano, GP & Teece, DJ 2007, “How to capture value from innovation: Shaping intellectual property and industry architecture”, California Management Review, vol. 50, pp. 278-296. Raustiala, K & Sprigman, C 2006, “The piracy paradox: innovation and intellectual property in fashion design”, Virginia Law Review, vol. 92, no.8, pp. 1687-1777. Richman, MB, Denton SRN & Behr, A 2012, Navigating fashion law: Leading lawyers on exploring the trends, cases, and strategies of fashion law (Inside the Minds). Thomson Reuters Westlaw, New York. Sara RE 2010, “Copyrighting couture: An examination of fashion design protection and why the DPPA and IDPPPA are a step towards the solution to counterfeit chic”, Tennessee Law Review, vol. 78, no. 163. The Library of Congress THOMAS n.d., Bill Text: 112th Congress (2011-2012), H.R.2511.IH, viewed December 2012, http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.2511: Volino, P, Cordier, F & Magnenat-Thalmann, N 2005, “From early virtual garment simulation to interactive fashion design”, Computer-Aided Design, vol. 37, pp. 593–608. Read More