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You Ra Ra …. CHEER … LEAD … ER … UNIFORM … DESIGN!

Apparel is a muddy area of U.S. intellectual property law. While foreign countries have created a separate category of “design rights” which protect apparel, in the US companies have tried to use everything from product configuration trademarks, to design patents, to copyrights to protect fashion design. Have you ever noticed that a fashionable design you may see at a high end clothing store will often show up a few weeks later at Target or Wal-Mart?

The Sixth Circuit Court of Appeals recently weighed in on this topic. Excellent timing with the start of the football season upon us!

Varsity Brands, Inc., the world’s largest producer of cheerleader gear, sued rival Star Athletica LLC for copyright infringement over uniforms produced by Star Athletica. Varsity owns several copyright registrations on graphic designs that appear on cheerleading uniforms and warm-ups. The designs at issue are illustrated in the Court Opinion.

Because clothing is typically considered a functional, useful article, it is generally ineligible for copyright protection. The Sixth Circuit Court of Appeals discussed this a bit further. “Fabric design” is distinguished from “dress design.” The Copyright Act protects fabric designs, but not dress designs. Fabric designs are those imprinted on a fabric, such as a rose petal, which can be repeated throughout the fabric or used once. This fabric design can be used or repeated on a number of different articles, such as a t-shirt, a bag, a cellphone case, a notebook, etc. Dress design, on the other hand, graphically sets forth the shape, style, cut, and dimensions for converting fabric into a garment or other article. As a result, dress design is considered to be physically and conceptually inseparable from utilitarian aspects of the design.

The Court believed the graphic features of Varsity’s cheerleading uniform design were more like fabric design than dress design and therefore found them to be protectable under copyright. Varsity Brand’s cheerleading uniforms include stripes, chevrons and other graphic elements. These designs were considered by the Court to be copyrightable because they were conceptually separable from the clothing itself, and as a result, the designs were capable of existing independently of the utilitarian aspects of the cheerleading uniforms. In particular, the Court concluded that “the arrangement of stripes, chevrons, color blocks, and zigzags are ‘wholly unnecessary to the performance of’ the garment’s ability to cover the body, permit free movement, and wick moisture.”

Interestingly, in its discussion of the law, the Court notes that “the creative arrangement of sequins, beads, ribbon, and tulle, which form the bust, waistband of a dress, [or skirt] do not qualify for protection because each of these elements (bust, waistband, and skirt) all serve to clothe the body.” Likewise, the Court notes a chef hat shaped like vegetables would not receive copyright protection because it is used to cover the wearer’s hair. If this is the case, would it have made a difference if the stripes of the cheerleading uniform were sewn on to the uniform? It would seem so.

DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.

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