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Protecting Uniform Designs

When is a uniform design exclusively, and legally, yours? Alas, there is not a one-size-fits-all answer. The answer is equivocal because uniforms are, after all, clothing, and clothing designs evolve from fashion.

Fashion designs usually cannot be copyrighted. In a high-fashion designers ideal world, no detail about any of his creations would be known outside of his design house until he wanted it known. Everything would be under wraps until the models strutted down the runways in Paris, London or New York to show off the latest clothes to members of the fashion press.

But in the real world of high fashion, there are more leaks than in a Senate investigation. Spies and contacts ferret out details of styles, colors and fabrics from disgruntled employees and other sources.

Enough of this information reaches the knock off companies (who make no secret of what they do) to enable them to manufacture cheaper versions of the clothes. The colors may be the same as those in the original designs, but the fabrics will be of lower quality. Labor-intensive details like lace, pleats, extra tailoring, or extra buttons for appearance instead of closure will not be included in the less expensive copies.

The cheaper versions of designer originals are sold first in department stores, then in discount stores. The knock-off artists, as they sometimes even refer to themselves, take pride in how quickly sometimes less than a day they can have their copies for sale in stores.

There have been attempts to extend copyright protection to clothing design. One of the most recent was U.S. House Resolution 5055, commonly known as the Design Piracy Prohibition Act. This bill was introduced by Rep. Bob Goodlatte (R) of Virginia in early 2006 with the backing of the Council of Fashion Designers of America.

Its main provision was to allow individuals to copyright a fashion design for three years. New designs of uniforms would most likely have qualified for this protection. However, Goodlattes bill did not make it out of a House Subcommittee meeting in the summer of 2006.

Many people in the fashion industry, even designers, did not want the bill to pass. The knock-off designers and others in the fashion industry claim that only a small percentage of customers can afford to buy expensive, original designs created just for them. Less expensive copies let all customers enjoy the fun of new designs. They have more choices over a broad price range, which is also true with uniforms.

Fashion trends dont develop unless an item of clothing is copied, and copied repeatedly. The original designer, whos perceived as influential enough to spark a trend, gains publicity and prestige and more high-end customers seeking original, expensive designs. That recognition holds true for designers of uniforms or evening gowns. So copies benefit more people than those knock-off designers who make the first copies.

Another objection to outlawing copying of designs is that designers draw their ideas from many sources. They may start with a competitors design, then take a detail from something in nature, then add a style from another country or time, and then finish the concept by adding their own variations.

If this idea of multiple influences seems strange, consider one of the hottest fashion trends this year: Roman sandals with lots of parallel and crossed leather straps, sometimes going up the leg as high as the knee. The designs have been around since, well, the first Romans who wore them. They certainly cant be copyrighted as original designs.

Sometimes companies and designers have the same or nearly the same idea at the same time. Trying to figure out who got there first, and thus whose design deserves a copyright or a patent, can be difficult and may involve major legal expenses.

With clothing patents, its very hard to prove there was not prior usage, says Sol Jacobs, of I. Spiewak & Sons Inc. in New York City. Jacobs, Michael Spiewak and Roy Spiewak were granted U.S. Patent Application No. 20070067889 on March 29, 2007.

On Sept. 23, 2005, their lawyers filed an application seeking three patents for Class B features on a Class A dress uniform worn by law enforcement officers or other uniformed personnel. The three structural features make a Class A dress uniform more functional, more comfortable and more attractive, according to the application for the patents.

One feature is for a passive shirttail retention system. This means that the uniforms wearer is not required to fasten a clip, a garter or any other device to keep the tail of his shirt tucked inside his waistband.

The shirttail retainer consists of spaced apart silicone rubber friction strips on the outer surface near the waist which cooperate with a friction strip on the inner surface of the pants waistband. Its an obvious advantage when an officer must appear at a ceremony or other formal event, particularly if he must wear a bulletproof vest.

The second structural feature is a microphone sling hidden under the epaulets on the shoulders of the uniform shirt. The location secures a microphone for clear transmission and works better than a using a shirt collar.

The third structural feature is an internal cargo pocket on the inner surface of the outer leg wall of the pants. The pocket, accessible from the outside via a slit, expands on the inside, which allows the dress pants leg to retain a neat appearance. More spacious than the typical pockets on dress uniform pants, it allows the wearer to carry a two-way radio or other equipment.

With all three patents, we were clearly able to establish that there was no prior use, Jacobs says. I. Spiewak & Sons also was granted the right to use any one of the patents, with or without the other two, on its Class A dress uniforms.

The company has not found any infringements of its three patents, but were monitoring the industry, Jacobs explains. We fully intend to enforce our patents.

Spiewak sought patents rather than a copyright or trademark because the features are not only new but functional. Anything that has a functional aspect, as opposed to pure design, can be patented, explains Todd Stockwell, managing partner of Stockwell & Associates, an intellectual property law firm in Lexington, Ky.

Stockwell says that an example of a patent for a uniform would be some sort of a safety feature, such as a quick release to free the wearer from equipment or part of the uniform itself.

Patents are granted for 20 years from the date of filing the application. It takes three years on average to receive a patent, so its good for about 17 years and is nonrenewable, Stockwell says.

Trademarks offer much longer protection to their owners. A trademark can be renewed forever, as long as its still being used, Stockwell says. Using the example of package delivery giant UPS, he explained that UPS, the expression What can Brown do for you? and United Parcel Service are no doubt registered trademarks.

The color brown for the uniforms would probably meet the standards, too, because its well known as belonging to UPS.

Stockwell explains that being associated by the public with a color, image or expression is the determinant for being granted a trademark. The classic legal case involving exclusive use of a color was Owens-Corning. Its successful effort showed that when people saw pink insulation they thought of Owens-Corning.

Patterns, pictures or designs can be copyrighted, but utilitarian features cannot. For functional or utilitarian claims, only patents are granted. Adding a design feature to the front or back of a uniform increases the chances of copyrighting a uniform design, Stockwell says.

A copyright, which lasts for 95 years, is the weakest form of legal protection for a uniform designer. To challenge use, the owner has to show that it was copied by someone else, who will claim that he independently created it. With either a patent or a trademark, you dont have that issue, Stockwell says. He recommended that a uniform designer or company go for a trademark because it offers stronger protection than a copyright.

Doug Daigler, senior fashion designer at the WearGuard-Crest division of Aramark, says, We mostly copyright and register/trademark any branded or sub-branded product of our own generic styles.

Aramarks trademarked brands include WearTuff and SteelGuard, part of WearGuard-Crestss Rugged Work Wear division. This line of uniforms and garments is designed for the toughest work environments.

Daigler emphasizes how closely his company works with customers to protect their uniforms. We maintain the standard of each corporate program, everything from the logo, garment, etc., he says.

Aramark adds the customers logo only on the garments specified by the customer. We maintain the distribution and integrity of their corporate identity, even all the way to the destruction of the uniform, Daigler explains.

Marcia Hischke of M Direct Inc. has been designing uniforms for 25 years, for At Work Uniforms and other companies. About 10 or 12 years ago, she was granted a patent for a family-type restaurant workers uniform that she designed. Her client was Uniforms to You, which is now owned by Cintas.

The patent-worthy (i.e., functional) aspect of the jumper for women was its fastening system. Hischke designed a wrap-around style, adjustable by buttons. Each jumper could fit any female employee who was within a range of three or four clothing sizes.

Over the years Hischke has seen many uniform styles and variations of them. Theres no exclusive on any basic styles, fashion [clothes] or uniforms, she says. People have tried to sue, and [their claims] didnt hold up in court.

Hischke recently completed a project for the Hard Rock Hotel in Biloxi, Miss. With a member of the rock band Black Eyed Peas, she co-designed uniforms for the hotel workers. The band member, who has his own line of clothing called Will-I-Am, had ideas of style within the rock music industry. Hischke knew fabrication and other aspects of uniform design. I took their ideas [for the look] and detailed it out, made it a reality, she explains.

The uniforms resulting from this unique collaboration are extremely branded, Hischke says. Its a look only Hard Rock could do. It has part of their branding.

Branding can be a de facto protection against having ones uniform designs copied. Taking the time to incorporate features associated with the customers company features recognized as such by the general public can result in a specialized, unique design. If any other companys employees wore copies of the uniform, it would be tantamount to giving free advertising to the original company.

Hischke says that some divisions of companies each have their own individual look. She, however, feels that you have to have a consistent look throughout all of the properties. It strengthens the brand, and a strong brand sends a message.

Patents are granted for 20 years from the date of filing the application. It takes three years on average to receive a patent, so its good for about 17 years and is nonrenewable.

Todd Stockwell
managing partner,
Stockwell & Associates

To challenge use, the owner has to show that it was copied by someone else, who will claim that he independently created it. With either a patent or a trademark, you dont have that issue, Stockwell says. He recommended that a uniform designer or company go for a trademark because it offers stronger protection than
a copyright.

Above story first appeared in MADE TO MEASURE Magazine, Fall & Winter 2007 issue. All rights reserved. Photos appear by special permission.
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