In past articles I wrote about the challenges a fashion designer has in protecting his or her designs from knock offs. A United States Supreme Court case called Wal-Mart Stores v. Samara Brothers held with regard to trade dress protection under the Federal Unfair Competition laws found in the Lanham Act, a fashion designer must show their designs had secondary meaning.

That means in the mind of consumer the consumer associates the design, or packaging, with the particular source, or in this case the designer.

The Lanham Act deals primarily with trademarks and trade dress and protects the public from being confused as to the source and origin of a product or service. For example, the golden arches is normally associated with McDonald's hamburgers. If some else used golden arches that looked like McDonanlds' aches and sold hamburgers there is a likelihood consumers would be confused and think they are buying McDonalds when they are not.

However there is another branch of intellectual property law known as copyright. The copyright laws refer to an original work of authorship. To get a co
pyright the product needs an expenditure of a modicum of intellectual effort and must be original.

Authorship involves expression as distinguished from ideas expressed. Works of authorship in general include literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion picture and other audiovisual works; sound recordings; and architectural works.

Under the broad category of pictorial, graphic, and sculptural works includes works of art and models or designs for works of art.

While a copyright will issue to cover a specific fabric design, it is doubtful whether a clothing designer can obtain a copyright for the design of the entire dress. What this means is that a fashion designer may obtain copyrights on certain elements of a designer's dress, but may not be able to obtain a copyright on the entire design. The elements would primarily be an artistic fabric design.

The best thing to do is submit the design to the Copyright office and see if they will register a copyright on any portion of the design. If you obtain a copyright you can stop others from copying your protected copyrighted elements.