The Subcommittee on Intellectual Property, Competition and the Internet has scheduled a Hearing on H.R. 2511, the "Innovative Design Protection and Piracy Prevention Act," [IDPPPA] for Friday 7/15/2011 at 10:00 A.M.
We previously posted on the IDPPPA and we will post a follow-up on Friday with details of the Hearing.
We now have a copy of HR 2511, published July 13, 2011. This bill proposes an amendment to 17 USC 1301 et seq.
Of note, the bill adds the following language to 17 USC 1301:
"Fashion Design.-A fashion design is subject to protection under this chapter."
A fashion design, as defined in the bill, is the appearance as a whole of an article of apparel, including its ornamentation, and includes original elements or the original arrangement of elements as incorporated into the overall appearance of the article that:
"are the result of a designer's own creative endeavor," and
"provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles."
The term 'apparel' is given a broad meaning, and 'substantially identical' is defined as an article "which is so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial."
It should be noted, however, that the "presence or absence of a particular color or colors or of a pictorial or graphic work imprinted on fabric shall not be considered in determining the protection of a fashion design ... or in determining infringement...."
A protected fashion design continues for 3 years beginning on the date of commencement of protection under Section 1304, which states the date is the date the design was first made public. 'Registration' will not apply to fashion designs.
An "infringing article" is defined as any article which has been copied from a protected design, or from an image thereof, without consent. An article is not considered "copied" when it is not substantially identical in overall visual appearance to the original elements of the protected design or when it is the result of independent creation.
Also, it is not considered infringement to make, have made, import, sell, offer for sale, advertise, or distribute an article which was created without knowledge a design was protected and the article was copied from such design. Accordingly, unknowing retailers appear to be protected from liability, and there does not appear to be any liability for end-consumers.