On September 12, 2012, U.S. Senator Chuck Schumer, D-NY, introduced S.3523, the Innovative Design Protection Act of 2012. Schumer’s bill reintroduces legislation previously submitted by the Senator, and follows H.R. 2511, a version of the bill introduced last year by U.S. Representative Bob Goodlatte, R-VA.

As previously discussed by Arent Fox, passage of the Innovative Design Protection Act would be the first U.S. law to provide copyright protection to fashion designs. While the scope of protection under the Act is limited to “unique, distinguishable, non-trivial and non-utilitarian variation over prior designs,” because many countries already provide design protection for fashion items, implementation of the Act could encourage continued development of the fashion industry in the U.S. Furthermore, the Act could help to protect new and established designers from the ever-growing problem of blatant knock-off products.

Although much of the fashion industry seems to support the Act, its application has caused significant debate. For example, some have questioned whether the Act’s three-year protection term is sufficient, while others disagree with the Act’s exclusion of previously created designs. Furthermore, some groups are worried that the protection of fashion designs as a whole will result in increased litigation, with costs passed down to consumers. Whether Congress will ultimately pass the Act is yet to be seen; the Senate has referred the Act to the Committee on the Judiciary.

Arent Fox will continue to monitor the progress of this Act through Congress. For further information, please contact Anthony V. Lupo, Sarah Bruno, Luna M. Samman, or Amy E. Salomon.