Fashion IP Checklist: Design Documentation, Separability Analysis, Filing Sequence, Season Calendar, and Counterfeit Response

By Casey Scott McKay · 2024-05-02

This checklist runs a fashion intellectual property programme season by season, in the order the deadlines actually fall. It opens with the design documentation practice that proves independent creation and the four-bucket triage that decides where money goes. It then works copyright group registration timed to publication, deposit strategy that frames what is claimed, and the pre-show design patent deadline that forfeits foreign rights when missed. It covers ownership across freelancers, converters, photographers, and manufacturers, trade dress construction through consistent use and look-for advertising, and trademark sequencing including the ornamentality problem. It closes with clearance before production, counterfeit response including customs recordation and marketplace enforcement, demand letter triage, and the post-season review that sets the next filing decisions.

IP and Technology > Copyright | Checklist | Published 2 May 2024 - Updated 8 August 2025 | Casey Scott McKay - marksy.us

Summary. This checklist runs a fashion intellectual property programme season by season, in the order the deadlines actually fall. It opens with the design documentation practice that proves independent creation and the four-bucket triage that decides where money goes. It then works copyright group registration timed to publication, deposit strategy that frames what is claimed, and the pre-show design patent deadline that forfeits foreign rights when missed. It covers ownership across freelancers, converters, photographers, and manufacturers, trade dress construction through consistent use and look-for advertising, and trademark sequencing including the ornamentality problem. It closes with clearance before production, counterfeit response including customs recordation and marketplace enforcement, demand letter triage, and the post-season review that sets the next filing decisions.

Keywords: fashion IP checklist · design documentation · dated design records · separability triage · group copyright registration · deposit strategy · pre-show design patent filing · broken line practice · trade dress file building · look-for advertising · freelance assignment · converter exclusivity · photography licence audit · customs recordation · marketplace takedown · demand letter triage · clearance before production · season calendar · European disclosure sequencing · post-season review

How to use this checklist

| Phase | What it covers | |---|---| | 1 | Design documentation | | 2 | Separability triage | | 3 | Print rights position | | 4 | Copyright registration | | 5 | Deposit strategy | | 6 | Design patent selection | | 7 | Pre-show filing | | 8 | Drawing practice | | 9 | Trademark sequencing | | 10 | Ornamentality | | 11 | Trade dress construction | | 12 | Ownership: people | | 13 | Ownership: suppliers | | 14 | Clearance | | 15 | International | | 16 | Customs and counterfeits | | 17 | Online enforcement | | 18 | Demand letter triage | | 19 | Season calendar | | 20 | Post-season review |

Boxes marked [Gate] must clear before the show, before publication, or before a demand letter goes out.

The matter. The coat was copied in six weeks. There was no claim, and there was never going to be one. The print on the dress next to it was copied too, and that claim settled in eleven days — because someone had filed a group registration three weeks before the garments shipped.

Phase 1. Design documentation

[ ] Date every sketch at creation, in a system that records the date independently.
[ ] Version and retain CAD files rather than overwriting.
[ ] Preserve mood boards and reference materials, including what was drawn from and how it was changed.
[ ] Preserve mill, studio, and converter correspondence.
[ ] Record strike-off approvals and sample iterations with dates.
[ ] Retain rejected variations, which show the development path.
[ ] [Gate] Confirm records would support an independent creation defence.
- Why. Independent creation defeats a copying claim, and dated development files are the proof. A studio with records answers a demand in a week; one without takes a month and settles.
[ ] Confirm records would also support an originality claim on the house's own designs.
[ ] Retain records for the life of the design plus the limitations period, at minimum.

Phase 2. Separability triage

[ ] [Gate] Run the four-bucket sort when the line locks.
[ ] Bucket one — surface designs: prints, embroideries, appliqués, jacquards, lace, graphics, beadwork arrangements. To copyright registration.
[ ] Bucket two — articles with a life beyond one season: footwear, bags, eyewear, watches, jewellery, hardware, closures. To design patent filing.
[ ] Bucket three — signature elements to be used across collections. To the trade dress programme.
[ ] Bucket four — seasonal silhouettes, cuts, constructions. No protection; spend nothing and assert nothing.
[ ] For each feature, ask whether it can be perceived as art separate from the garment, and whether it would qualify as protectable art standing alone.
- Why. That is the test in Star Athletica v. Varsity Brands, which expanded protection for what is applied to a garment and expressly declined to protect the garment's shape, cut, and dimensions.
- Trap. Spending analysis on the contested middle before sorting the obvious cases. Surface is separable; structure is not.
[ ] Record the triage on one page per season, with owner and filings against each item.

Phase 3. Print rights position

[ ] For each surface design entering the line, record its origin: house-created, commissioned, purchased, or archival.
[ ] For commissioned designs, confirm a present-tense assignment was executed before work began.
[ ] [Gate] For purchased designs, read the invoice and the strike-off approval, which frequently contain the entire grant.
- Trap. Textile purchasing conveys a non-exclusive licence far more often than buyers realise, and nobody asks until the print appears elsewhere.
[ ] Confirm exclusivity where it matters, defined by market segment, territory, and period.
[ ] Confirm the converter's own rights where the print derives from an archive or a third-party studio.
[ ] For archival designs, confirm the source is genuinely in the public domain.
[ ] Confirm that a later rendition of a public domain motif is not itself protected.
[ ] Record what the designer added where the design derives from an existing motif, since protection extends to the new contribution only.
[ ] Flag any design the house does not own before registration.
- Why. Registering someone else's design creates a different and worse problem than having no registration.

Phase 4. Copyright registration

[ ] [Gate] File a group registration for the season's surface designs, tied to the publication date rather than to discovering a copy.
[ ] Confirm the filing falls before any infringement, or within three months of first publication.
- Why. 17 U.S.C. § 412 conditions statutory damages and attorney fees on that timing, and it is what makes a print claim economic.
[ ] Confirm the correct group option is used for published versus unpublished works.
[ ] Record the registration number against the triage sheet.
[ ] Confirm registration has issued before filing any suit, per 17 U.S.C. § 411 and Fourth Estate Public Benefit v. Wall-Street.com.
[ ] Use special handling where a live season is at stake, and budget for it.
[ ] Confirm authorship and ownership statements are accurate.
- Trap. An inaccurate work made for hire claim on a freelance design, which can undermine the registration.
[ ] Register standalone hero designs individually where they justify it.
[ ] Diary the next season's filing at the same time.

Phase 5. Deposit strategy

[ ] Deposit the design as artwork: the print as a repeat unit, the embroidery as a motif, the graphic as artwork.
[ ] [Gate] Do not deposit a photograph of the finished garment as the primary deposit.
- Why. The deposit frames what is claimed. A garment photograph invites examination of the useful article; a repeat unit presents a two-dimensional work whose separability is not in question.
[ ] Where a three-dimensional applied element is claimed, deposit views that present it as a sculptural work.
[ ] Confirm the deposit shows the full design rather than a partial view.
[ ] Keep a copy of exactly what was deposited, filed with the registration number.
[ ] Confirm the deposit matches the design as actually used, since variations may not be covered.
[ ] For a design with several colourways, confirm whether each requires separate treatment.

Phase 6. Design patent selection

[ ] Select pieces with a commercial life beyond one season.
[ ] Prioritise footwear, handbags, eyewear, watches, jewellery, hardware, closures, and soles.
[ ] Include elements that will recur across collections.
[ ] Exclude seasonal garments, where prosecution outlasts the product.
[ ] Consider expedited examination where a piece anchors a category, and budget for the fee.
[ ] Assess prior art in the category before filing, given that LKQ v. GM Global Technology Operations replaced the rigid primary-reference test with a flexible obviousness analysis.
- Why. Design patents are easier to challenge than they were, so prosecution quality and a documented prior art position matter more.
[ ] Note the 35 U.S.C. § 289 total profit remedy when assessing value, and the limitation in Samsung Electronics v. Apple on what the relevant article of manufacture is.
[ ] Confirm the term under 35 U.S.C. § 173 and that no maintenance fees apply.
[ ] Decide the filing markets before the show, not after.

Phase 7. Pre-show filing

[ ] [Gate] File every selected design patent application before any public disclosure.
[ ] Treat each of these as a disclosure: runway show, press preview, buyer lookbook, trade show sample, retailer presentation, social post, influencer seeding.
- Trap. Treating only the show as the disclosure, when the lookbook went to buyers six weeks earlier.
[ ] Confirm the domestic grace period under 35 U.S.C. § 102 is treated as a safety net rather than a plan.
[ ] Confirm no foreign filing is contemplated where a disclosure has already occurred, because most systems have no grace period.
[ ] [Gate] Sequence first disclosure in Europe deliberately where the unregistered design right matters.
- Why. That right runs from first disclosure in the region and covers the shape and cut US copyright does not.
[ ] Put a standing item in the pre-show production meeting: which pieces are filing, and have the applications gone in.
[ ] Obtain filing confirmations before the disclosure date, not after.
[ ] Record the disclosure date and event on the season record.

Phase 8. Drawing practice

[ ] Claim in solid lines; disclaim in broken lines.
[ ] File multiple embodiments claiming different combinations of features, building a family rather than one narrow claim.
[ ] Consider an embodiment claiming only the distinctive element, with the remainder disclaimed, which is broader and harder to design around.
[ ] Include sufficient views to define the design completely.
- Trap. Missing views, which create indefiniteness problems and narrow the claim by implication.
[ ] Confirm consistency across views; inconsistencies invite rejections and later challenges.
[ ] Confirm surface shading conveys contour where contour is part of the design.
[ ] Consider whether environmental structure should appear in broken lines to show context.
[ ] Assess infringement scope against Gorham Manufacturing v. White as applied in Egyptian Goddess v. Swisa, remembering that in a crowded field small differences matter.
[ ] Instruct a draftsperson who works in the category, because apparel and accessory drawings have conventions.

Phase 9. Trademark sequencing

[ ] [Gate] File the house name first, before design-based applications.
- Why. It is the durable asset, it supports the strongest remedies, and it makes secondary source available to rescue ornamental refusals.
[ ] File the designer name where used as a mark.
[ ] File line and sub-brand names on an intent-to-use basis under 15 U.S.C. § 1051 ahead of launch.
[ ] File logos, monograms, and signature repeated patterns used as source indicators.
[ ] File distinctive hardware shapes and closure designs.
[ ] Cover the real footprint by class: clothing, footwear, bags, accessories, eyewear, jewellery, fragrance, home.
[ ] Confirm use or bona fide intention for every class claimed.
[ ] Set a watch service for confusingly similar filings.
[ ] Docket declarations and renewals.
[ ] For collaborations, confirm quality control provisions adequate to avoid naked licensing.
- Why. Abandonment of the mark is a worse outcome than any copying the programme addresses.
[ ] Note that Jack Daniel's Properties v. VIP Products narrows the expressive-use defence where the accused use is as a source identifier.

Phase 10. Ornamentality

[ ] Assess placement before filing any design-based application.
[ ] Small placements — chest, cuff, hem tag, hardware — generally function as marks.
[ ] Large graphics printed across a garment front generally do not.
- Why. The refusal is that the matter is ornamental rather than source-identifying. See Failure to Function.
[ ] Where refusal is likely, rely on secondary source using an existing registration for other goods.
[ ] Confirm specimens show the mark as actually used in the claimed placement.
[ ] Consider whether the same design supports both a copyright claim as surface decoration and a trademark claim as an identifier, which reinforce each other.
[ ] Avoid claiming a decorative pattern as a mark where it is used purely as decoration, since the file will contradict the claim.

Phase 11. Trade dress construction

[ ] Select two or three elements, no more.
[ ] Confirm each is usable across collections without constraining design.
[ ] Confirm each is non-functional under TrafFix Devices v. Marketing Displays.
[ ] Assess aesthetic functionality honestly, particularly for colour claims.
[ ] [Gate] Use each element consistently, every collection, unchanged.
- Why. Wal-Mart Stores v. Samara Brothers means product design is never inherently distinctive, so consistency over years is the evidence.
[ ] Write look-for advertising into every campaign brief, directing consumers to the feature as a source indicator.
- Why. It is the most effective secondary meaning evidence available and it costs nothing extra.
[ ] Maintain the file: dated examples across collections; advertising spend on campaigns featuring the element; sales figures for products bearing it; unsolicited press describing it as the signature; instances of intentional copying with dates.
[ ] Commission a consumer survey once the file supports it.
[ ] Apply for registration under 15 U.S.C. § 1052 on acquired distinctiveness when the record is ready.
[ ] For colour claims, expect a narrow construction and draft the description to match actual use, as in Christian Louboutin v. Yves Saint Laurent America.
[ ] Review the file annually and add the year's evidence.

Phase 12. Ownership: people

[ ] Confirm in-house designers are employees in fact, so works within the scope of employment vest under 17 U.S.C. § 101.
[ ] [Gate] Confirm every freelance designer and studio executed a present-tense assignment before starting work.
- Why. Design is not among the enumerated work made for hire categories, and 17 U.S.C. § 204 requires a signed writing. Absent one, the freelancer owns it.
[ ] Confirm the assignment covers preliminary materials and rejected variations, not only delivered files.
[ ] Obtain confirmatory assignments for past work that matters.
[ ] Confirm photographers assigned or licensed, and record term, territory, and media for each licence.
- Trap. Reusing a campaign image years later or repurposing a print licence for digital, both of which exceed the grant. See The Image Business.
[ ] Audit photography usage against licence scope annually.
[ ] Confirm model and talent releases, with scope and term recorded.
[ ] For collaborations, state whether the output is a joint work or a licensed contribution.
- Why. Absent agreement, joint authors each hold an undivided interest and may license non-exclusively without consent.
[ ] Fix the templates once rather than papering each engagement.

Phase 13. Ownership: suppliers

[ ] Record for every converter and mill whether the grant is a licence or an assignment, and exclusive or not.
[ ] Negotiate exclusivity expressly where the print matters, with segment, territory, and period defined.
[ ] Confirm the supplier's warranty that it holds the rights it grants, and take an indemnity.
[ ] Assess the supplier's ability to stand behind the indemnity.
[ ] For contract manufacturers, address ownership of patterns, specifications, and tooling.
[ ] [Gate] Address overrun disposal expressly.
- Why. Overruns are how genuine goods reach grey channels, and the problem is frequently misdiagnosed as counterfeiting.
[ ] Require sample return and accounting.
[ ] Include audit rights over production quantities.
[ ] Confirm subcontracting requires consent, and that flow-down obligations apply.
[ ] Include confidentiality covering patterns, specifications, and unreleased designs.
[ ] Review the supplier file before any enforcement action, because a leak from the supply chain changes the response entirely.

Phase 14. Clearance

[ ] Run design patent searches in categories where competitors file, before committing to tooling.
- Why. The 35 U.S.C. § 289 total profit remedy makes an unsearched launch expensive.
[ ] Review competitors' advertised signature elements and avoid them, since those carry secondary meaning files.
[ ] Clear new line names and any monogram pattern or hardware shape intended as a mark.
[ ] For archival prints, confirm the source is out of copyright and the specific rendition is not a later protected adaptation.
- Trap. Archive books are frequently reproductions of reproductions, each layer potentially protected.
[ ] For purchased designs, take a warranty and an indemnity and price the studio's covenant realistically.
[ ] Maintain the independent development file: dated sketches, mood boards, references, and how they were changed.
[ ] [Gate] For private label and fast-turn production, confirm prints are cleared before production rather than after.
[ ] Record the clearance work, because its existence is the answer to a demand letter.

Phase 15. International

[ ] Confirm whether the European unregistered design right is available, which protects appearance for three years from first disclosure in the region.
[ ] [Gate] Sequence first disclosure in the region where that right matters.
- Trap. A design first shown elsewhere may not qualify, which makes the show calendar a legal decision rather than a marketing one.
[ ] File registered designs in target markets before disclosure, given absent or short grace periods.
[ ] Maintain a filing matrix by market and by piece, decided before the show.
[ ] Diary priority deadlines for convention filings from the first application.
[ ] Register marks in manufacturing and transit countries as well as consumer markets.
- Why. Customs recordation abroad depends on national registrations, and interception is most effective near the source.
[ ] Identify jurisdictions offering fast, inexpensive design enforcement with no US equivalent.
[ ] Confirm local counsel is instructed and address-for-service records are current.

Phase 16. Customs and counterfeits

[ ] [Gate] Separate counterfeits from copies before choosing a response.
- Why. A counterfeit uses the mark and is always unlawful; a copy reproduces the design under its own brand and is frequently lawful. The toolkits share almost nothing.
[ ] Record every registered mark with the border agency.
- Why. It supports detention and seizure under 15 U.S.C. § 1124 and 19 U.S.C. § 1526, costs very little, and is the highest-leverage step in the programme.
[ ] Supply product identification guides showing how to distinguish genuine goods.
[ ] Update the guides when packaging, labelling, or security features change.
[ ] Consider ex parte seizure under 15 U.S.C. § 1116 against physical operations, and budget for the bond.
[ ] Assess statutory damages exposure under 15 U.S.C. § 1117, including the enhanced range for wilfulness.
[ ] Consider criminal referral under 18 U.S.C. § 2320 for organised operations.
[ ] Implement serialisation or authentication features where volume justifies it.
[ ] Distinguish grey market goods, where exhaustion applies and the response runs through material differences and contractual controls. See The Sale That Ends Your Rights.
[ ] Check the supply chain before assuming counterfeiting, since overruns present identically at first glance.

Phase 17. Online enforcement

[ ] Enrol in marketplace brand registries and takedown programmes.
[ ] Use tooling rather than individual letters; volume work does not scale by correspondence.
[ ] Monitor the platforms where the category actually sells, not a generic list.
[ ] Capture evidence at the time: listing screenshots with dates, seller identity, pricing, and shipping origin.
[ ] Pursue domain actions where infringing sites are dedicated to the brand.
[ ] File payment processor complaints, which frequently achieve more than takedowns.
[ ] Consider mass joinder actions against overseas sellers with asset freezes over payment accounts. See Schedule A Defendants.
[ ] Track recovery against programme cost, because online enforcement can fund itself.
[ ] Watch for repeat sellers reappearing under new identities and maintain a seller history.
[ ] Confirm takedowns are based on marks or registered designs, not on unprotectable silhouettes.
- Trap. Abusive takedown notices generate counter-notices, platform sanctions, and occasionally claims.

Phase 18. Demand letter triage

[ ] [Gate] Identify the specific right asserted before drafting anything.
[ ] Print copied and registered before the copying: strong, with 17 U.S.C. § 412 remedies. Send.
[ ] Print copied but registered late: actual damages only. Register now; consider a withdrawal request without a damages claim.
[ ] Article covered by an issued design patent: strong, with 35 U.S.C. § 289 exposure. Send.
[ ] Design patent pending: no claim yet. Record the copying for later damages and wait.
[ ] Signature element with a documented secondary meaning file: viable. Assess the file honestly first.
[ ] Mark used on the goods: counterfeit toolkit applies instead.
[ ] [Gate] Silhouette alone: no claim. Do not send.
- Why. It invites a declaratory judgment action in the recipient's forum and, in some states, a bad-faith assertion claim.
[ ] Assert only what is registered, describe it precisely, and stop.
- Trap. Adding weak claims to a strong letter; the recipient answers the weakest assertion and characterises the whole demand as overreaching.
[ ] Capture evidence before sending: photograph in situ with price ticket, purchase the item, retain receipt and tags, capture the listing with dates.
[ ] Model the settlement against the run's likely profitability rather than against a litigation outcome that will never arrive.

Phase 19. Season calendar

[ ] T minus six months. Design development with dated records; print rights position confirmed for every design.
[ ] T minus four months. Four-bucket triage; design patent selection; filing markets decided; signature elements confirmed.
[ ] T minus three months. Design patent searches; competitor signature avoidance review; name clearance.
[ ] T minus two months. Design patent applications filed in every target market; intent-to-use trademark applications for line names.
[ ] T minus one month. European disclosure sequencing decided; filing confirmations in hand.
[ ] [Gate] Show. Pre-show filing checklist cleared before any disclosure occurs.
[ ] At first publication. Copyright group registration filed. This is the 17 U.S.C. § 412 deadline and the most commonly missed date in the calendar.
[ ] In season. Monitoring across marketplaces, social platforms, and the retailers known to copy; evidence captured contemporaneously.
[ ] In season. Enforcement triage on what is found.
[ ] Post-season. Review of what was registered against what was copied.
[ ] Annually. Portfolio review; trade dress file updated; ownership templates checked; customs recordations current; declarations and renewals docketed.

Phase 20. Post-season review

[ ] List copies found, and for each, whether a right existed.
[ ] Where no right existed, ask whether one could have — a print registered in time, a design patent filed pre-show, a signature element with a file.
[ ] Where a right existed and was not used, ask why.
[ ] Review whether the triage buckets were correct in hindsight, particularly bucket two selections.
[ ] Review whether any registration failed to cover the design as actually sold.
[ ] Review enforcement outcomes: letters sent, settlements, claims declined for lack of rights.
[ ] Record the gaps on the season record and convert them into next season's filing decisions.
- Why. A season record that never lists gaps is one nobody is reading.
[ ] Report annually on registrations held against copies found, which is the only number that shows whether the programme is pointed at the right things.

Phase 23. Applying the separability test

[ ] Ask whether the feature can be perceived as a two- or three-dimensional work of art separate from the garment.
[ ] Ask whether the lifted feature would qualify as a protectable work standing alone.
[ ] Printed pattern: yes.
[ ] Embroidered motif: yes, subject to originality.
[ ] Colour-blocked panel arrangement: yes — the Star Athletica v. Varsity Brands fact pattern itself.
[ ] Lace or jacquard pattern: yes.
[ ] Beadwork forming a design: yes.
[ ] Neckline shape: no.
[ ] Sleeve construction: no.
[ ] Seam placement serving fit: no.
[ ] Hem length or drape: no.
[ ] Pocket shape: generally no; decorative stitching on it, yes.
[ ] Decorative buckle or closure: frequently yes, since the fastening function does not defeat protection where the design is separable from the operation.
[ ] Sculpted collar or structured shoulder: contested.
[ ] Ruffle: contested — applied ornamentation yes, shaping element no.
[ ] Sole tread: no, and probably functional.
[ ] Repeating monogram: yes, and also a mark.
[ ] The pattern. Surface tends to be separable; structure tends not to be. Reserve real analysis for features that do both.

Phase 24. Resale and refurbishment

[ ] Confirm resale of genuine goods is protected by exhaustion and cannot be prevented.
[ ] Focus enforcement on material differences: goods altered, repackaged, or refurbished and sold as new.
[ ] Focus on removal or alteration of marks.
[ ] Focus on misrepresentation of condition, authenticity, or authorisation.
[ ] Permit nominative use by resellers describing what they sell. See Descriptive and Nominative Fair Use.
[ ] Object where a description implies brand endorsement of a third-party authentication process.
[ ] Distinguish repair, which leaves goods genuine, from reconstruction, which may not.
[ ] Treat non-genuine components installed in genuine goods and sold as original as straightforward infringement.
[ ] Assess upcycled goods sold under the original mark case by case, since the exhaustion defence weakens as the product diverges.
[ ] Publish an authentication standard and work with the larger platforms rather than against them.
- Trap. Enforcement aimed at resale generates ill will and rarely succeeds; enforcement aimed at misrepresentation is straightforward and well received.

Phase 21. If you can only do four things

[ ] File the design patents before the show. The most expensive omission in the practice, and purely a calendar failure.
[ ] Register the season's prints on the publication date. It is the difference between a strong claim and an uneconomic one.
[ ] Get present-tense assignments from freelancers before work begins. Otherwise the house is enforcing a design it does not own.
[ ] Record the marks with customs. Cheapest leverage available, and it works while nobody is watching.

Phase 25. Scaling to the client

[ ] Independent designer. House name registered; season's prints filed as a group at publication; dated design files kept; customs recordation once the mark issues. Skip design patents unless a single piece anchors the business.
[ ] Established house. Add pre-show design patents on recurring pieces and accessories in three or four markets; a trade dress programme on two signature elements with look-for advertising in every campaign brief; monitoring and a takedown vendor; a filing matrix by market.
[ ] Group with multiple brands. Centralise the calendar, templates, customs programme, takedown vendor, and docket; decentralise the triage to the design teams who know which pieces will carry.
[ ] Licensee or manufacturer. The exposure is clearance: design patent searches before tooling, competitor signature avoidance, dated development records, warranties and indemnities on purchased designs.
[ ] Retailer. Highest clearance exposure, because volume and speed cut against diligence. Standing rule that private-label prints clear before production, plus a documented independent-development file.
[ ] Where to spend first, at any size. Marks, then prints, then the calendar discipline that makes both timely. Design patents and trade dress follow where product life justifies them.
[ ] [Gate] Confirm the programme matches the client's actual product life. A house whose pieces live one season and a house whose accessories run a decade need different programmes, and running the wrong one wastes the budget on filings that expire unused.

Phase 26. What this costs

[ ] The four-bucket triage takes a morning per season with the design team in the room.
[ ] A group copyright registration covering a season's prints is the cheapest protection in the programme, per design.
[ ] Design patent filings are the largest line item, which is why selection matters more than volume.
[ ] Expedited examination is worth its fee only where a piece anchors a category.
[ ] Customs recordation costs almost nothing and works continuously.
[ ] Look-for advertising costs a line of campaign copy and builds an asset over years.
[ ] Fixing the ownership templates is a one-time cost that eliminates a recurring class of failure.
[ ] Online enforcement can fund itself through recoveries at sufficient volume.
[ ] The asymmetry. Every date in the calendar is cheap to meet and impossible to recover once missed, which is the whole argument for the calendar.

Phase 22. Metrics

[ ] Design patent applications filed before first disclosure, as a percentage of pieces selected. Target one hundred per cent.
[ ] Copyright group registrations filed within the statutory window, by season.
[ ] Surface designs registered against surface designs in the line.
[ ] Freelance engagements with a present-tense assignment executed before work began.
[ ] Prints purchased with exclusivity, against prints purchased.
[ ] Photography usages within licence scope, audited annually.
[ ] Marks recorded with customs, against marks registered.
[ ] Copies found per season, and the proportion against which a right existed.
[ ] Letters sent against claims declined for lack of rights.
[ ] Enforcement recoveries against programme cost.
[ ] Years of continuous use and look-for advertising accumulated per signature element.
[ ] The one that matters. The proportion of copies found for which the house held an enforceable right, because it improves with better triage rather than more spending.

Outcome. The season record from two years earlier showed the pattern plainly: eleven copies found, rights held against two. The coat, the dress silhouette, and six other shapes were unprotectable and always had been. Of the three prints copied, one had been registered in a group filing at publication and settled in eleven days on statutory damages exposure; two had been registered four months late and produced nothing. No design patents had been filed at all, because the applications had been prepared and then held until after the show. The following year the programme changed in three places. A standing pre-show agenda item confirmed design filings before any lookbook went to buyers, and six applications went in across two markets. The group registration moved to the publication date and covered every surface design in the line. Freelance templates were rewritten with present-tense assignments and confirmatory assignments obtained for the archive. Nothing else changed — no new budget line, no litigation, no additional headcount. Copies found the next season were fourteen; rights were held against nine of them, four settled, and the recoveries covered the filing programme with room over.

Key Authorities at a Glance

| Authority | Proposition | |---|---| | 17 U.S.C. § 101 | Useful article; separability; work made for hire | | 17 U.S.C. § 102 | Pictorial and graphic works | | 17 U.S.C. § 113 | Useful articles depicting protected works | | 17 U.S.C. § 204 | Signed writing for transfers | | 17 U.S.C. § 411 | Registration before suit | | 17 U.S.C. § 412 | Statutory damages and fees | | 17 U.S.C. § 1301 | Vessel hull design protection | | 35 U.S.C. § 102 | Novelty; grace period | | 35 U.S.C. § 171 | Design patents | | 35 U.S.C. § 173 | Term | | 35 U.S.C. § 289 | Total profit remedy | | 15 U.S.C. § 1051 | Intent-to-use applications | | 15 U.S.C. § 1052 | Registrability; acquired distinctiveness | | 15 U.S.C. § 1114 | Infringement | | 15 U.S.C. § 1125 | Trade dress; false designation | | 15 U.S.C. § 1116 | Injunctions; ex parte seizure | | 15 U.S.C. § 1117 | Damages; counterfeiting remedies | | 15 U.S.C. § 1124 | Importation of infringing goods | | 19 U.S.C. § 1526 | Customs seizure | | 18 U.S.C. § 2320 | Criminal counterfeiting | | Star Athletica v. Varsity Brands | Separability test | | Mazer v. Stein | Art in a useful object | | Fourth Estate Public Benefit v. Wall-Street.com | Registration means registration | | Gorham Manufacturing v. White | Ordinary observer | | Egyptian Goddess v. Swisa | Design patent infringement | | LKQ v. GM Global Technology Operations | Design patent obviousness | | Samsung Electronics v. Apple | Article of manufacture | | Wal-Mart Stores v. Samara Brothers | Product design needs secondary meaning | | TrafFix Devices v. Marketing Displays | Functionality | | Christian Louboutin v. Yves Saint Laurent America | Colour mark with contrast limitation | | Jack Daniel's Properties v. VIP Products | Source use limits expressive defence |

The five things people get wrong

One. They file the design patent after the show. A runway show, a lookbook, or a social post is a public disclosure. 35 U.S.C. § 102 gives a domestic grace period; most other systems give none, so foreign design rights are forfeited outright. This is the most expensive omission in fashion practice and it is a calendar failure.

Two. They register prints only after finding a copy. 17 U.S.C. § 412 conditions statutory damages and fees on registration before the infringement or within three months of publication. Missing it converts a strong claim into an uneconomic one.

Three. They assert rights in a silhouette. Star Athletica v. Varsity Brands is explicit that the shape, cut, and dimensions of a garment are not protectable. A letter asserting otherwise invites a declaratory judgment action and teaches the recipient that the house does not know its position.

Four. They buy prints without asking about exclusivity. Textile purchasing frequently conveys a non-exclusive licence on the invoice, which means the same print may appear on a competitor's rail next month.

Five. They build trade dress by accident. Wal-Mart Stores v. Samara Brothers requires secondary meaning for any product design, and that file takes years of consistent use and look-for advertising. It cannot be assembled after the copying starts.