The recent case of Dior v. Milton' indicates that the "misappropriation" doctrine of the law of unfair competition will be applied to impose liability upon unlicensed users of original clothing designs. The purpose of this article is to outline briefly the statutory protection presently available for such designs, and to discuss certain problems raised by the Dior v. Milton decision.
The Constitution, in article I, section 8, provides that Congress shall have power to enact legislation "to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." This provision is the constitutional basis for federal patent and copyright legislation. There is little argument that this grant of power is broad enough to permit congressional legislation protecting designs. In the past, many bills have been introduced providing specifically for "design copyright,' and although defeated on policy grounds, their constitutionality was not seriously doubted. The question has never been judicially decided, however, and must wait for the time legislation specifically providing for design copyright is enacted.
Leonard S. Elman,
The Limits of State Jurisdiction in Affording Common Law Protection to Clothing Designs,
11 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol11/iss2/15