SCOTUS Changes Fashion Law Forever

Until now, no case hailing from the niche of fashion law had stepped onto the U.S. Supreme Court stage.  A decision this week has changed that.

The Star Athletica v. Varsity Brand case has become a trailblazer for copyright in the fashion industry. Just yesterday, the SCOTUS found decorative items--specifically those common on cheerleading uniforms--to be protectable under copyright law.  This ruling is contrary to years of cases in lower courts, where opinions have continuously determined decorative elements of clothing were inseparable from the garments themselves.   

In the only apparel-related case to ever come across the docket, the Supreme Court made a determination which could change the fashion industry forever.   Law360 noted, "The question before the justices was how courts should decide when such “separability” exists, an issue that has split lower courts. Fashion companies pushed for a looser approach that would allow them to protect more apparel with copyrights; consumer advocates called for a tighter approach, meaning less protection and more competition."

The fashion companies won. 

With this ruling, designers now have a gateway to protecting the artistic elements of their designs, and drawing a long-awaited distinction between their unique work, and a useful item (clothing).  Surely this case will set the stage for more litigation, as designers will have firm ground to stand on when exercising their vigilance in protecting their work. It may also set the stage for shocking the conscious of the counterfeit market. 

This has been quite the fight for those of us knee-deep in the fashion law industry.  What will fashion law conquer next?

Saved By The Trinkets

Hello loves,

Are any of you an aspiring luxury handbag designer? Recently, I had to do some extensive research on, how a designer goes about acquiring protection for their original designs. As many of you may already know, you are not able to gain protection for any feature of your design that is “functional”. Function, meaning that in order to make the object what it is, certain aspects are needed. An example of a functional aspect is the standard buttons on a coat. However, if a designer goes as far as to 1) create a sculptured button that is an original idea, 2) that can stand alone as a piece of art if separated from the coat; those decorative/ornamental, buttons can be gain copyright protection.

How does this apply to handbags? Before law school I often wondered how despicable individuals, were able to take a handbag and create look alike knockoffs. Well, know that I am completely judging anyone who would take someone else’s idea and try to pass it off as their own. Even in the fashion industry this is still considered stealing!

First, if you are a designer of handbags, you are able to copyright and or trademark all parts of your handbag that is NOT functional, but conveys information. Therefore, all elaborate designs that are your original creation such as graphics, embroidery, unique designs in fabric and very unique jacquard weaving, can be federally protected.Brand logos are protectable, too,

Second, high end handbags have trinkets on them that are removable. If you take a closer look, these trinkets usually resemble the designer’s federally protected trademark in a three dimensional form. Some bags also have a silk lining that reflect the designer’s trademark.

As a designer, you have a right for your customer to not be confused as to the source and quality of their merchandise. Therefore, although someone can disrespectfully create a look alike of your work, they are not able to use an exact replica of your original designs without your permission. If you successfully obtain federal protection of your marks, and or graphics design, you are on your way to gaining notoriety in the fashion industry. Notoriety is your trade dress, which is the image are you recognized by and the way it is displayed in the market.
‍ ‍

Third, get to work. Go forth and be creative. Put your designs out for the public to purchase.

Until next time…

SPOT THE FAKE...

B.A.F.F.L.E.D. Fashion Law

Fast Fashion Has In-Fighting Over Copies--

Retailer H&M is suing its fellow fast fashion colleague, Forever 21 over copyright infringement.  H&M claims Forever 21 is selling a "Beach Please" bag, distinctly made for H&M, which was also registered for a copyright this past June.  The sales have continued even after cease and desist letters.

The story here seems to be a tad bit more about the irony of one fast fashion retailer suing another.  Both are widely known for taking designs straight from the runway to their quick manufacturers, then sales floor within weeks.  Forever 21 is said to have commissioned one of their loyal Chinese manufacturers for the H&M bag copy.  Both retailers have been sued over copies in the past--several times. 

It will be interesting to see how this one plays out.  Forever 21 is known for settling their infringement suits under the table.  Maybe this will be no different.   There are many arguments on both sides for protection of fashion designs expanding past prints and patterns.  Usually, the fight is between a luxury retailer and fast fashion giant...or even a boutique designer and established retailer.  How will 2 common infringers settle it? Nevertheless, there's something more to be hammered out here.  

For more on fashion law and infringement's damage, check out these posts!

B.A.F.F.L.E.D. Fashion Law

Will Phone Check be the New Coat Check?

We've talked a number of times about the ease of infringement at fashion shows.  With New York Fashion Week closing today, it's a good time to think about how NYFW and fashion weeks across the States could be changing.  Unlike in Europe, America has no federal protection for fashion designs.  The utility argument continues.  This brings up the question of how and what designers will do to protect their precious works of art.  

New technology as a threat

With technology improving every day, and camera phones being so commonplace, designers could be expected to ban these devices from their shows.  Instead of checking your coat, you'll have to check your phone at the door.  Press would be allowed in, but forced to sign strict agreements on distribution of the photos they take.  It sounds outrageous, but is not far-fetched.  Infringement lawsuits are getting filed left and right these days.  With the quickness and ease of social media, designs are always in harms way.  

Everyone knows attendees quickly take photos of their favorite styles, send them to manufacturers and have them on the racks at places like Forever 21 faster than the original designer can make another for their own collection.  We've heard this line so many times before.  

Still not having federal legislation to protect fashion designs under copyright--only prints and patterns have this security--designers are constantly looking for something to protect themselves.  Otherwise, trademark and design patents are pretty much the only options.  

Should cities offer protection?  What can they do?

Many say there is no real harm to the lower-priced copies.  The shoppers at one price point are not the shoppers at another.  This debate will continue.  Should fashion week host cities come up with their own solutions?  Would you surrender your phone at the door of a fashion show?

What are your thoughts?

B.A.F.F.L.E.D. Fashion Law

Federal Legislation is Back!

It's been a busy week in fashion law.  Protection for fashion designs has been a battle on Capitol Hill for sometime now.  Just yesterday, Senator Schumer filed S. 3523, as the latest attempt to protect what designers hold dear.  

Here are the details:

Filed Monday, September 10, 2012 by Senator Schumer

-Protection for fashion designs are provided for apparel bearing a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.  Apparel is to include men's women's, children's clothing, handbags, eyewear, and belts.

-Infringing designs are those deemed to be "substantially identical" to a protected design.  Substantially identical means an article of apparel which is similar in appearance as to be likely too be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.

-Designs not subject to protection include: designs made public by the designer or owner before the date of enactment of this law, or more than 3 years before the date protection of the design is provided.  

-Designs will be protected for a term of 3 years. 

-If an owner spots infringement: The owner of the design shall provide written notice of the design protection to any person they reasonable believe has violated or will violate their protection.  

-Infringers will only be liable for damages and profits accrued after the date the action for infringement begins.  

Infringing article is any article the design of which has been copied from a design protected under the IDPA or from an image thereof, without the consent of the owner of the protected design.  An infringing article is not an illustration or picture of a protected design in a advertisement, book, periodical, newspaper, photo, broadcast, movie or similar medium.

Home sewn articles for personal use and not for sale of trade are not considered infringing articles.  

-Protection begins: when the design is made public and the 21-day period for review has run.  Penalties for infringement will range from $5,000 - $10,000

The Senate will mark this one up on Thursday.  Stay tuned!

*Tuesday Tops will return next week