By Luo Yanjie
The clothing has been long seen the most afflicted field of IPR infringement, and in addition to the common trademark infringement, the pass off on the design or model developed by others is also ubiquitous. To pass off the design of the clothing is of no way to be protected by trademark law, for which shall be covered by the copyright law. Considering the clothing itself is not the statutory protective object in law, how to protect the design of clothing is also among the long argued topics. In today’s post, we would discuss over the issue.
I. The patterns on clothing are art works
In the clothing market, you must have seen amounts of simple dresses with various patterns, like a white T-shirt with Mickey Mouse pattern. Due to the general style adopted in the dresses, they themselves are not the works in law. But that does not mean the patterns on them could not be protected by law. Once the originality could be found on the patterns, they could be deemed as the works in the copyright law, and to further consider the low demands of the originality in the copyright law, most patterns on the clothing sold in the market could be the art work. And unless licensed by the right holder, any copy of them would be the copyright infringement.
II, Clothing effect draft are also the art works
It shall be first made clear that all the effect drawings mentioned here refer to those pictures used to express designer’s ideas and effect of the clothing, and also in the meantime, you may also notice the model and other elements accompanied with it. But they are usually not used to be the model of the clothing manufacture. In my opinion, such drawings shall be protected as art work for the following reasons:
1, no one could manufacture the clothing only with the effect drawing, but shall first modify them into structure, model at first.
2, regarding the same design, the designer can draw various effect drafts to express the design concept.
3, as required by the effect display, the designer will usually add a lot of art elements in effect draft, such as models, lighting and so on. It makes the effect draft more conform to the definition of art works.
When the clothing produced by the effect drawing is with artistic elements, such manufacture will of no question to be the infringement. But if the clothing is containing no artistic elements (clothing effect draft constituting art work does not represent the clothing has art elements), and only simulates others’ style, no infringement could thereby be confirmed. The main reason is despite it is judged the copy from plane to 3D dimensional, the manufacture of clothing by the drawing is only legally the copy of artistic part of the clothing.
III, Clothing model are pictorial works
Clothing model is the expression and deduction of clothing effect draft. It is mixed in the knowledge of model maker. In other words, the model is the true drawing for product. According to the definition of “pictorial works” in Implementing Regulations of the Copy right Law:
“such works as drawings of engineering designs and product designs which are designed for the purpose of actual construction and manufacturing, and maps, sketches and other graphic works showing geographic phenomena and demonstrating the fundamentals or the structure of a thing”.
Therefore, Clothing model are pictorial works
In addition, to define the clothing making by drawings the copy from plane to 3D dimensional is also supported by the hearing court in the copyright and unfair competition dispute between Shanghai Jin He equipment limited company, Shanghai Jin Cheng Industrial Protective Products Company and Gu Jing, Shanghai Zheng Bo clothing company, Shanghai Ji Da garment factory. As advocated by the judge, cutting fabric according to the model is actually copying model. Therefore, without authorization, using others’ clothing model for the production constitutes copyright infringement.
IV, After the new copyright law, the clothing itself constitute “applied art works”
By the existing copyright law system, the clothing itself could not be the work. As just like what has been described above, all the infringement fight against the passing off is basing on the definition of works of the patterns in clothing and the paper of design as well as the model. But as regulated in the latest draft of copyright law, the works of applied art has been added into the scope of copyright protected objects. According to the definition of “applied art works” by Berne Convention:
“The convention representations covering small ornaments, jewelry, gold and silver, furniture, wallpaper, decoration, clothing and other producers of artistic achievement “, and the clothing is a typical “applied art work”.
Of course, as provided in the existing legal system, the clothing itself is a stereo form of the clothing model. But as amended in the new draft of the law, it could be protected as the works of applied art in the future. And for this reason, how to clarify the relationship between 2 kinds of works is a big challenge for our law department. But in any case, increasing “Applied Art works” in the law will undoubtedly strengthened the protection for the right people in many fields including clothing industry.
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