The apparel industry has a reputation, not undeserved, for being a hard place to protect creative ideas. After all, who hasn’t seen knockoffs of famous Oscar gowns available the week after the ceremonies, copied right down to the last detail? Unsurprisingly, conscientious entrepreneurs want to do everything they can to protect their creative work, which is why we often see new companies asking for a Nondisclosure agreement (commonly referred to as NDA) on the garments they ask us to produce. We understand the concern, and honestly we wish that an NDA would accomplish what they want—which is to be confident that no one is going to try to steal or illegally profit off their ideas. Here’s why that isn’t the case:
The Reality of IP Law for Apparel in the U.S.
The elements of a garment that can be protected by intellectual property law in the U.S. are extremely limited, because articles of clothing are considered functional rather than artistic creations (in general). This explains why knockoffs aren’t illegal—once your garment is out in the world, it can be reverse engineered and produced by someone else, and that’s unfortunately legal. An NDA doesn’t change that. If you’re looking for legal protection, your budget would be better spent on branding and marketing, in order to secure defensible trademarks, or seeking copyright protection for the artistic elements of your work.
The Limitations of What an NDA Protects
An NDA can only protect information that has been truly kept secret. If you’re seeking an NDA with your potential manufacturer, it can only cover information that you haven’t shared with other parties. In addition, the NDA will only protect your work during an extremely narrow window of time—during design, development, and/or manufacturing process, but before it has hit the market. Once your products have been introduced to the market, the NDA is essentially null and void. Again, the limited legal protection you might get from this isn’t worth the money you’d have to spend to get a lawyer to draw it up.
A better approach is to partner with a trustworthy apparel design house and manufacturer. Much of the bad reputation the fashion industry has developed over the years has come from overseas producers, particularly in China, where copying is rife and legal remedies nearly impossible. At ARGYLE Haus, we treat our clients’ proprietary information with utmost confidentiality, because our professional reputation is built on quality and reliability. We put our best work into your designs, because when you succeed, we do too.