Washington Journal of Law, Technology & Arts


Intellectual property distinguishes a protected work’s aesthetic value from its functionality. In so doing, intellectual property law prevents fashion designers from asserting their rights over entire garments. Apparel industry leaders have repeatedly proposed legislation that would overcome this limitation, and the latest in a succession of draft bills is the Design Piracy Prohibition Act. In critiquing the Design Piracy Prohibition Act, this Article surveys fashion designers’ existing federal intellectual property rights, particularly trade dress. In the most recent Supreme Court exposition of the elements of a trade dress action, Wal-Mart Stores, Inc. v. Samara Bros., Inc., the Court clarifies some elements of the law, but leaves the threshold for establishing secondary meaning unresolved. After Samara, federal district courts have applied trade dress protection to fashion designers without compromising policy objectives against broad intellectual property rights. This Article concludes that trade dress, specifically the secondary meaning element of trade dress, is an underdeveloped area of law with potential to satisfy designers’ need for stronger intellectual property rights where other legislative attempts have failed.

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