By Sarah Haynes. Sarah Haynes is a first year law student at Sandra Day O’Connor College of Law at Arizona State University. She holds a master’s degree in Recreation, Sport, and Tourism and a bachelor’s degree in Anthropology, both from University of Illinois at Urbana-Champaign. She has an interest in how intellectual property law impacts the sport and fashion industries. This is her first year with the McCarthy Institute.
Whether you consider yourself a fashionista or not, the decisions made by designers ultimately trickle down and impact something in your wardrobe, as Miranda Priestly famously explained to Andy Sachs in The Devil Wears Prada (2006).[1] Those decisions start on the drawing board with the design, extend to the selection of fabrics and colors, and continue through to the final stitch.[2] The designers working for the fashion houses at the top of the fashion pyramid can spend hundreds of hours creating a dress.[3][4] Once the design debuts at fashion week or on the red carpet, as Miranda Priestly explains, it continues down the fashion pyramid, with more affordable derivative pieces making their way into our closets.[5]
How can this be allowed when copyright law seeks to protect original artistic works?[6] Clothing is typically classified as a “useful article,” which is defined as “an article that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”[7] It is not permissible to obtain a copyright on a useful article.[8] However, there have been expansions of copyright law to protect designs on an article of clothing, as the Supreme Court decided in Star Athletica v. Varsity Brands.[9][10] When a design element can be perceived as a work of art separate from the useful article and the element would be protectable in its own right, then the element as it is incorporated in the useful article is eligible for copyright protection.[11] However, this is mostly cabined, as the Copyright Office tends to deny applications for copyright protection of common patterns, like stripes or polka dots.[12]
There may be an avenue for designers to protect their work product through trademark law, but this is only slightly less limited than copyright law.[13] One goal of trademark law is to protect identifying markers, to protect a trademark owner’s interest in ensuring a consumer knows a certain product originated from the trademark owner.[14] Designers are permitted to trademark logos, designs, and even color usages that are distinctive and used in commerce, so long as the logo or design is also not essential to the functionality of the product. [15][16] The functionality doctrine prohibits trademarks on features when a trademark on that feature would significantly limit competition in a market.[17] It is the functionality doctrine that stops trademark law from being the IP boon fashion designers may be looking for.[18]
For example, Christian Louboutin was able to trademark its signature red soles; when a consumer sees a shoe with red soles, they know the maker is Louboutin.[19] Normally, the umbrella use of a color is not trademarkable, but it was in this case because the trademark was limited to Louboutin’s specific use with the red sole.[20] When the Second Circuit heard a case where Louboutin was trying to stop Yves Saint Laurent from using a similar shade of red on the sole of a shoe, the court did limit Louboutin’s trademark to instances where the sole was in contrast with the rest of the shoe’s coloring.[21] The court also rehashed the difference between aesthetic functionality and utilitarian functionality.[22] The court found the red sole was not subject to the affirmative defense of aesthetic functionality, as it had developed a “secondary meaning” in the public eye.[23] As described above, the red sole has become synonymous with the Louboutin brand. However, if Louboutin had tried to trademark a shoe design[1] , the trademark would likely be denied, under the utilitarian function doctrine, as the design is integral to the function of the shoe.[24]
Louboutin’s desire to protect a design under patent law is a different story. Under design patent law, “whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent [therefore].”[25] So long as a design meets the elements traditionally required to be patentable, it is eligible for design patent protection.[26] In this way, designers have seen increasing protections for their truly novel ideas, as seen with Louboutin’s patents on its Azimut Leather Lace-up Ankle Boots, Guerilla Studded Open-Toe Booties, and Tassilo Flat Black Patent Loafers With Spikes, amongst others.[27] However, with the requirement that designs be novel and non-obvious, it is oftenlikely to be difficult to achieve a patent for a design. Not impossible, just difficult.
In short, despite all the work couture designers put into their work, there are limited IP[2] [3] [4] avenues they can take to protect their designs. Under copyright, they can seek to protect design elements, but only if those designs can be separated from the clothing and the designs are not exceptionally common. Under trademark, they can protect logos, but to trademark other elements requires defeating the functionality doctrine. Luckily, for those genius designers who create something novel and non-obvious, their designs can be protected from the lower plebs on the fashion pyramid through patents.
[1] The Devil Wears Prada, Disney+, at 21:49 (Fox 2000 Pictures 2006).
[2] Esmee Blaazer, This is how a fashion brand’s collection is created, Fashion United: Exec.(Nov. 21, 2022), https://fashionunited.com/news/background/this-is-how-a-fashion-brand-s-collection-is-created/2022112150798.
[3] Elizabeth Paton, Guo Pei, Creator of Rihanna’s Met Gala Gown, Is Ready for Paris, N.Y. Times (Jan. 26, 2016), https://archive.nytimes.com/www.nytimes.com/2016/01/27/fashion/guo-pei-couture-paris.html#:~:text=That%20all%20changed%20last%20May,at%20a%20major%20fashion%20week.).
[4] Thomas Bernhardt-Lanier, #7 What is the fashion pyramid?, Medium (Nov. 21, 2024), https://medium.com/@thomas_bl/7-what-is-the-fashion-pyramid-09a4e6a166a3.
[5] The Devil Wears Prada, Disney+, at 21:49 (Fox 2000 Pictures 2006).
[6] Copyright All., Differences Between Copyright, Trademarks, Patents, and Trade Secrets?, Copyright All., https://copyrightalliance.org/faqs/difference-copyright-patent-trademark/ (last visited Feb. 1, 2026).
[7] 17 U.S.C. § 101 (2010).
[8] Rachel Kim, How Is Fashion Protected by Copyright Law?, Copyright All. (Feb. 10, 2022), https://copyrightalliance.org/is-fashion-protected-by-copyright-law/.
[9] See Star Athletica, L.L.C. v. Varsity Brands, Inc.,580 U.S. 405, 405 (2017).
[10] Kim, Supra note 8.
[11] See Star Athletica, 580 U.S. at 405.
[12] Rachel Kim, How Is Fashion Protected by Copyright Law?, Copyright Alliance (Feb. 10, 2022), https://copyrightalliance.org/is-fashion-protected-by-copyright-law/.
[13] Id.
[14] Copyright All., Supra, Note 8.
[15] Katherine Laatsch Fink, Seeing Red: Recent Developments in the Trademark Functionality Doctrine, Banner & Witcoff Intell. Prop. Update Fall/Winter (2012), https://bannerwitcoff.com/_docs/library/articles/Seeing%20Red%20%20Recent%20Developments%20in%20the%20Trademark%20Functionality%20Doctrine.pdf.
[16] Kim, Supra, Note 8.
[17] See Landscape Forms, Inc. v. Columbia Cascade Co., 70 F.3d 251, 253 (2d Cir. 1995).
[18] Fink, Supra Note 15.
[19] Eugene M. Pak and Hanna Kim, Top Ten Influential Intellectual Property Cases In Apparel & Fashion Law, Fennemore: Insights(Oct. 23, 2025), https://www.fennemorelaw.com/ten-influential-intellectual-property-cases-in-apparel-fashion-law/.
[20] Id.
[21] See Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206, 212 (2d Cir. 2012).
[22] Id. at 219.
[23] Id. at 228.
[24] See New Colt Holding Corp. v. RJG Holdings of Fla., Inc., 312 F. Supp. 2d 195, 212 (D. Conn. 2004).
[25] 35 U.S.C. § 171(a) (2012).
[26] See 35 U.S.C. § 101 (1952).
[27] The Fashion Law, Patent Law, The Fashion Law, https://www.thefashionlaw.com/resource-center/patent-law/ (Last visited Feb. 25, 2026).