A Tale of Two Fashion Nations: Comparative Fashion IP Laws in the United States and China

Abstract

This Article compares intellectual property (IP) protection for fashion designs in the United States and China. As the two largest fashion markets in the world, these countries both have controversies over the optimal IP protection against knockoffs. This study reveals that similar disputes have occurred in both countries because IP laws are not primarily designed for fastchanging fashion products. Although courts in both countries have handled identical legal issues, such as separability in copyright law, distinctiveness in trademark law, and patentability for designs, their approaches are quite different. While the U.S. doctrines, such as functionality in three-dimensional trademarks and trade dress protection for product packaging, are more developed in precedents, the Chinese doctrines, such as copyrightability in garment designs, are sometimes led by industrial policies. Since the Chinese government has been determined to develop its fashion industry, these two major economies will continue to compete to be not only the largest fashion economy around the globe but also the best legal environment to foster fashion creativity. The broader implication of this Article is that IP issues in the fashion industry have demonstrated how two distinct legal frameworks, characterized by comparable regulations yet varying social and economic standings, address analogous legal challenges.