The availability of overlapping protection disrupts the copyright, patent and design protection and makes it difficult, if not impossible; to determine whether the incentive structure created by legislature is appropriate.
Designers invest a large amount of time and money in producing innovative designs which are copied by other manufacturers. If principles of justice and fairness are applied, then designers should be protected and compensated by law in case of infringements. The designers initially depended on the copyright law to combat piracy that was prevalent in the fashion industry. However there is a limitation under this law as a designer’s overall concept cannot be protected. The copyright law only protects those elements of a design, which can be separated from the utilitarian aspect of clothing. Fashion designers require a high level of creativity, so much so that they can be equated to artists and require protection against infringements just like an artist.
This protection the designers seek can be found in the common law doctrine of trade dress, which is a hybrid of trademark and unfair competition law. Since gaining copyright protection over a certain design gives the designer a monopoly over that design. The Lanham trademark Protection Act ( Lanham Act) provides for trade dress under section 43(a) An important case is that of Walmart stores v Samara Brothers(2000), where the trade dress of Samara Brothers Inc. consisted of a line of spring/summer one piece