This week, the Italian design house Missoni debuted a line at discount retailer Target, resulting in sell-outs, website crashes, eBay markups, human sacrifice, dogs and cats living together, and so on. Clearly, Missoni is a popular brand. Upon information and belief (that’s lawyer-speak for “somebody told me”), Missoni is known for incorporating zig-zag patterns into their designs. A quick Google Image search confirms this. Even the little image that appears next to http://www.missoni.com/ in my browser bar is a zig-zag:
So, the question is, can the zig-zag patterns be protected under U.S. intellectual property law?
In the most basic sense, it appears that certain types of zig-zag patterns do function as trademarks of Missoni. Trademarks are “source identifiers” – they communicate to a consumer that this product comes from this source. The Nike swoosh on a pair of shoes communicates to the shoe shopper that these shoes came from Nike. Similarly, if a fashion-conscious consumer sees a piece of clothing with this type of zig-zag design, she will tend to think the product is a Missoni – or at least inspired by Missoni.
The last bit suggests a problem. I’m no expert on women’s fashion, but I feel comfortable saying that not all clothing with zig-zag designs originates from Missoni. They didn’t invent the concept of the zig-zag pattern. For example, I don’t remember Charlie Brown having a great deal of interest in Italian fashion:
So, at least at some level, Missoni is not the originator of the zig-zag pattern for clothing. What can they protect? Here are a few quick thoughts:
Only an individual design can be protected as a trademark. The concept of a zig-zag pattern for clothing cannot. The result is that Missoni’s individual patterns may be able to be protected if Missoni can show that consumers identify each individual pattern with Missoni, if Missoni adequately polices against any copiers, and if they meet all the other qualifications for trademark protection. The same could apply to confusingly similar patterns, but my sense is that the patterns would have to be nearly identical for Missoni to be able to claim infringement.
There is a bill currently working its way through Congress to provide limited copyright protection to fashion designs (here is a link to a PDF of the bill). This issue is controversial and too complex to cover in this post. However, unless and until that bill becomes law, fashion designs are largely outside of copyright protection. Even if the bill passes, it would only provide protection to “substantially identical” designs – a standard that is similar to that found in trademark law. So this legislation may provide some protection to Missoni against users of the same or substantially identical patterns, but it would still not give them “ownership” of the zig-zag pattern as a concept.
Currently, Missoni may be able to claim copyright infringement on the basis of graphic design, in the event that a specific pattern is copied. But again, that does not broaden the scope of protection to zig-zag designs in general.
To summarize, fashion designers can feel comfortable that, now and in the future, they can proceed with creating dresses with zig-zag designs, as long as those designs are not identical or confusingly similar to Missoni’s designs. And while they’re at it, they can go ahead and design some red-soled shoes to go along with dresses.
P.S. I’d like to thank my sister for suggesting this as a blog topic. Thanks, sis!