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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 118297
Experience:  Attorney practicing all aspects of copyright/trademark law
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I have thought in the past that fashion designs are

Customer Question

I have thought in the past that fashion designs are non-proprietary ... and therefore, if I created a little girls dress that is almost identical to another designers dress, it would not be an issue. Do you have any thoughts on this? Obviously, I don't want to be sued - so please let me know if I'm worried about nothing or if this could be a real problem.
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Fashion designs are not protectable by copyright. The fashion designs are protectable under trademark for "trade dress" only in most cases. Trade dress is the packaging and display of the item identifying it as from a particular manufacturer. Design of the fashion item is not generally protectable under trademark law for the design itself, see Wal-Mart Stores v. Samara Brothers, 529 U.S. 205 (2000). The US Supreme Court held that while a product's packaging can be protectable if it is inherently distinctive or has acquired secondary meaning, product design, which is the actual product or a physical element of the product, never can be inherently distinctive, and a showing of secondary meaning is required. For example, think of Adidas products with the 3 stripes on it, you can copy their shoe or clothing design, but not the 3 stripes as that is dress that has secondary meaning associated with their product.