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Star Athletica: Copyright in Clothing

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Star Athletica: Copyright in Clothing by Joshua Graubart{4:12 minutes to read}  In a prior post, I discussed Wal-Mart Stores, Inc. v. Samara Bros., Inc.,[1] in which the Supreme Court determined that aesthetic features of a product could not be protected under the trade dress rubric. In that case, the products at issue were children’s clothes, and the Court suggested that rather than rely on trade dress, the designer should instead rely on protection by copyright or design patent.

It is axiomatic that “useful articles” are not protectable under copyright,[2] and that only “primarily ornamental” features of an article are protectable under design patents.[3] As discussed here, the Supreme Court has previously ruled, in Mazer v. Stein,[4] that an article can be protectible under both copyright and a design patent.

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Another Aspect of Design: Trade Dress

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{4:30 minutes to read} In my last post, I discussed the design patent, a form of protection available under the Patent Act to protect designs that are “primarily ornamental” rather than those which – like most inventions one normally thinks of in connection with the Patent Act – are “primarily functional.” Design patent protection can coexist simultaneously with copyright protection for the design as a graphic or sculptural work.

In addition to patent and copyright law, non-functional designs can also be protected under the federal Trademark Act (also known as the Lanham Act), and under state trademark and unfair competition law.

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