Law, Brands, and Innovation: How Trademark Law Helps to Create Fashion Innovation, 17 J. Marshall Rev. Intell. Prop. L. 492 (2018)

THE JOHN MARSHALL REVIEW OF INTELLECTUAL PROPERTY LAW LAW, BRANDS, AND INNOVATION: HOW TRADEMARK LAW HELPS TO CREATE FASHION INNOVATION DAYOUNG CHUNG ABSTRACT This Article explores the role of trademark law in the fashion industry. For years, the fashion industry has drawn legal scholars’ attention for its maintenance of creative endeavors within a legal environment that offers limited protection against design copying. Some influential legal studies argued that copying paradoxically helps the fashion industry as unregulated copying stimulates the creation of new designs. Yet, this Article observes that the driver for new design creation is already built into the contemporary fashion industry. The question should rather be directed at who creates fashion and how the role of the law, if any, aids the subject and mechanism of making fashion. This Article illuminates on the significant role that established fashion houses (so-called luxury companies or high-end designers) play in making fashion. This Article also suggests that these fashion houses require brands to make fashion. On this ground, this Article then demonstrates the capacity of trademark law to protect established fashion houses’ brands. The Article begins in Part One with an observation of the contemporary fashion industry and elaborating on the social mechanism of making fashion. It argues that the creation of design does not simply make fashion until it is adopted by majority of people. This Article uses the term “fashion innovation” to refer to adopted designs, distinguished from the created designs that some legal scholars called “innovation.” What trademark law helps is “fashion innovation,” that is, the law helps the adoption of new designs created by established fashion houses. An adoption is a communication process that engages the brand, which, I show, works as a semantic mechanism of making fashion innovation. Part Two and Three unfolds how trademark operates to protect brands of established fashion houses throughout case law analysis. Part Two examines the capacity of trademark law in governing iconic designs associated with established brands, which, under copyright law, would receive limited legal protection. Part Three identifies the capacity of trademark law to govern consumer associations with established brands. After all, it is the interplay among trademark law, brands, and innovation that supports the thriving fashion industry. Copyright © 2018 The John Marshall Law School Cite as Dayoung Chung, Law, Brands, and Innovation: How Trademark Law Helps to Create Fashion Innovation, 17 J. MARSHALL REV. INTELL. PROP. L. 492 (2018). LAW, BRANDS, AND INNOVATION: HOW TRADEMARK LAW HELPS TO CREATE FASHION INNOVATION DAYOUNG CHUNG I. INTRODUCTION ........................................................................................................ 493 II. PART I ................................................................................................................... 498 A. The Piracy Paradox Debate .......................................................................... 499 B. A Model of Trend Adoption ........................................................................... 504 1. Creation of Possible Trends ................................................................... 504 2. The Adoption of Trends.......................................................................... 508 C. A Model of Product Diffusion ........................................................................ 518 1. Brands as Diffusion Mechanism ............................................................ 520 2. How Brands Operate on Our Lives ........................................................ 522 3. Brands and Fashion Innovation ............................................................ 527 III. PART II................................................................................................................. 529 A. How Copyright Law Offers Limited Protection for Fashion Design ............. 531 1. The Useful Article Rule Renders Fashion Design Not Copyrightable ... 531 2. When Does A Design Become a Copyrightable Work of Art? ................ 534 B. How Trademark Law Has Expanded to Protect Iconic Designs of a Brand . 542 1. The Trade Dress Doctrine Protects Design Features Upon Proof of Secondary Meaning ................................................................................ 543 2. The Aesthetic Functionality Doctrine Allows Free Copying For Basic Design Elements and Yet the Courts Narrow the Wide Interpretation of Aesthetic Functionality .............................................. 549 IV. PART III ............................................................................................................... 558 A. How Trademark Infringement Claims Help Established Brands Maintain Their Prestigious Brand Image .................................................... 559 1. Expansions on Actionable Types of Infringement with Lanham Act Amendments .......................................................................................... 560 2. Likelihood of Confusion Multifactor Test .............................................. 566 B. How Trademark Dilution Claims Help Established Brands Maintain Prestigious Brand Image.............................................................................. 570 C. How Trademark Law Protects Prestigious Brands from Parodies ............... 574 1. Trademark Law Offers Special Treatments to Traditional Parodies .... 575 2. Parody as Brands Does Not Receive a Parody Defense or Any Special Treatment .............................................................................................. 578 V. CONCLUSION .......................................................................................................... 581 492 [17:492 2018] Law, Brands, and Innovation: How Trademark Law Helps to Create Fashion Innovation 493 LAW, BRANDS, AND INNOVATION: HOW TRADEMARK LAW HELPS TO CREATE FASHION INNOVATION DAYOUNG CHUNG* I. INTRODUCTION The fashion industry exists within a legal environment that offers only limited protection for fashion designs. Legal commentators have almost uniformly noted and criticized the limitation of existing intellectual property protection and its failure to protect fashion designs and thus fashion designer’s incentives.1 The three core forms of intellectual property (“IP”) law – copyright law, trademark law, and patent law – are not specifically tailored to protect fashion design. Copyright law largely denies copyright protection to the class of useful articles, in which creative expression is compounded with practical utility such as apparel.2 For years, legislative attempts to provide a sui generis copyright protection for fashion design have not been successful.3 It was not until March 2017, in its Star Athletica, L.L.C. v. Varsity Brands, Inc. decision that the U.S. Supreme Court opened the possibility of using co (...truncated)