Fashion & Intellectual Property
Articles,  Blog

Fashion & Intellectual Property

Fashion is a form of art. Art is just a way of expressing yourself. Fashion is a trend. It really defines a lot of people. It touches everybody. It’s an industry that has 100% participation. It’s not a frivolity. It’s something that is a reflection of people’s
hopes and their dreams. I would say fashion is never going away. Whether it be digital stores or Instagram,
there’s always going to be fashion. People are always gonna buy clothes. Fashion’s important because it stands in for
who we are as individuals, as well as being an enormous industry, from design to production
to retail, and everything in between. Intellectual property is the basis for protecting
your concept and your idea, regardless of whether you’re in fashion or in any other
industry. Intellectual property is the body of law that
protects the creative process. Intellectual property is simply intangible
property. And ideas are not protectable, but artistic
expression of an idea is. So a lot of what regulates the fashion industry
from a legal standpoint is intellectual property law. And intellectual property law basically is
a mix of copyright, trademark, and patents. Trademark law probably has the biggest impact
on fashion. It’s the brand or the logo. It can be also more than just a name. Every great brand has a trademark: Kate Spade,
Calvin Klein, Ralph Lauren, Chanel, Gucci; all of these brands are well-known, and those
names are trademarked. The real, primary purpose of trademark law
is to avoid confusion in the marketplace among consumers. So the purpose of trademark law isn’t really
to protect companies, although it does that. It’s really to protect consumers. A trademark is anything, anything that functions
as a source indicator. It tells the customer, “oh, I know where this
product came from.” It really tells companies that if you invest
heavily in developing your brand, and developing the quality of your brand, and generating
consumer goodwill, that another company can’t come along and trade off of that goodwill. So it protects both the consumer and the company. One of the cases that I think has made more
members of the public aware of fashion law than anything else, a trademark case involving
Christian Louboutin and his red soles. Christian Louboutin is a French designer who
has trademarked in the US and in a number of other countries around the world the red
sole. It came to be very widely recognized that
when you saw that red, you knew it was a Christian Louboutin shoe. Very expensive, very high end, the very definition
of a trademark. People saw it and they knew where it came
from. Ferrari red, Tiffany blue, I mean, there,
there are a number of companies that have established good trademark rights in a color. And Louboutin sued Yves Saint Laurent for
creating a line of shoes where each shoe was a monocolor: red sole, but also red all the
way around. The whole shoe was red. In Christian’s case, we get shoes like this: a classic pump, with some interesting detail. And the red sole, which every bit as much
as the signature inside the insole, shows you, even when someone is wearing it, exactly
who created this shoe. The judge, Judge Marrero, wrote a very interesting
opinion saying that color was not protectable. And you can imagine how that affected the
industry. Tiffany wrote an amicus brief, ’cause of course
the Tiffany robin’s egg blue box. You look at that box, and back to source identification,
and you think Tiffany. The designer had been enjoined, brought a
trademark protection for quite a few years, ended up losing everything because he brought
the wrong case against the wrong people. Now the Second Circuit Court of Appeals, on
appeal, reinstated his trademark registration but rewrote it. They said, “we’re giving you your trademark
registration back, but it’s only going to apply to a contrasting sole.” Meaning that Yves Saint Laurent was permitted
to continue to make monochromatic shoes, or shoes that lacked any contrast, and so could
everyone else. But a very dramatic, very interesting case
that pretty much left bloody footprints to go with those red soles all over the industry. One of the most famous marks I think is Louis
Vuitton. And that little LV carries such weight with
it. Anything that has that label’s going to sell
for more than if it didn’t have that label. So they really need to protect that brand. Louis Vuitton has brought another parody case
involving a different company, a company that has created a series of canvas tote bags. The company is called My Other Bag, and the
idea is that My Other Bag have chosen a series of different companies to include in their
product. LVMH v. My Other Bag. Louis Vuitton sued because
someone had parody on their design. And they put it in their tote bag. This is a version of the classic Louis Vuitton
12, with the MOB’s for My Other Bag replacing the L’s and V’s that we would see on a genuine
Vuitton. And of course Louis Vuitton is not the only
company that has been bitten, if you will, by these bags. And LVMH lost because the court says it’s
conspicuously different. They just did a parody. So all they did was use your design, it’s
a brand, and they put it on the tote bag. And they did it as a picture, not as covering
the whole tote bag as if it was Louis Vuitton. Louis Vuitton had been pretty aggressive
in their enforcement. They tested it, and it didn’t go well. The parody question is an interesting one
for fashion companies because their trademarks are very well-known. Their trademarks are protected very carefully
because they are the primary economic resources of the brands. Designers come and go, boutiques open and
close, but trademarks are forever. They don’t want others copying that label,
’cause that will dilute their mark and will decrease the value. Part of the reason why trademarks are so important
in fashion is because in many jurisdictions, including the US, fashion has so little other
protection. Very little copyright, only a tiny access
to patent, but trademarks are universal. And so even if you can’t protect the entire
design, you can at least protect the trademark. A copyright is nothing more, nothing less,
than the right to copy. It’s designed to encourage more artistic creation
and expression by giving creators control over what they create. And the moment you put pen to paper to draw
a drawing, or create a sculpture, or compose a musical piece, you have a copyright in that
work. Overall, the cut and silhouette and shape
of a dress is not protected by copyright law. The rule has never been that utilitarian objects
like a garment aren’t protected; it’s only that they’re not protected by copyright law. You don’t want copyright to protect, for example,
the cut of a jacket. Because a jacket has two arms and buttons,
think of your standard blazer. For example, Diane von Furstenberg wrap dress,
the wrap dress itself is not protectable, but the design is protectable. The Star Athletica case dealt with a very
simple question, which is, if you have a series of shapes and stripes on an article of clothing,
is that protectable? And an employee of this company that made
pretty much all the cheerleader uniforms in the country went to another company and copied
some of the designs of his original employer. His new company was sued for copyright infringement. And what the court did is that they looked
at two different aspects of the designs. There’s the more utilitarian design, like
the cut of the uniform, versus the designs, the images that were on the uniforms. And the court stated that the copyright wouldn’t
protect the cut of the apparel, but would protect the designs. The court basically said that if you can pluck
those designs off of the cheerleader uniform, and put them in another form, so think about
your basic chevrons, and you pull them off the uniform, and you put them in a frame,
that’s protectable. Ultimately, the Supreme Court has decided
that there is a separability formula or theory. And what they determined was that if there’s
a two-dimensional or three-dimensional design, and it’s not part of the useful article, meaning
you can separate it out, it can be subject to copyright protection. Was it a hugely important decision that changed
the world in the US for protection of fashion? Absolutely not. It kind of left things where they are. It doesn’t seem to me at all to have changed
what the law is. But it should make litigating a case like
that much more efficient, because it takes away all of those extraneous tests and matters
that needed to be proved, that we now know don’t need to be proved. Intellectual property impacts every aspect
of what a fashion company does, beginning with the way products get designed, because
nothing gets designed in a vacuum. It is extremely important to retain the tiny
bit of protection that fashions do have under intellectual property law, and hopefully to
grow that a little bit with time so that we can compete more effectively. Having a dynamic, robust public domain, things
that people can refer to, is essential to everybody, including high-end collection designers. They’re not designing in a vacuum either. They’re using references as well. But if they didn’t have those things to refer
to, they would have a real problem. Intellectual property protection in the United
States is, in some ways, much better for the artists. And in other ways, it’s not. It’s very time-consuming. It takes a lot of energy, and mostly it takes
a lot of money for these emerging designers to protect their own creativity. There will always be cases where someone is
copying a good idea. And that’s good, we want that to happen. We want a good idea to be replicated with
each company’s own particular take and version of it. And if we don’t have copyright protections,
then it opens us up to complete theft of our ideas, of our creativity, of our business
model. I think it’s imperative. And without it, we wouldn’t be in business. Your creativity, your designs are coming from
within you and they deserve protection. People a lot smarter than us have created
this law that’s designed to encourage more artistic expression and creation. Because o-overall, it benefits society to
have copyright laws and trademark laws reasonably and fairly enforced. And there are a lot of open-ended questions
about what exactly is protected. It’s in kind of an uncharted area. The level of protection we have today is the
level of protection we should have because it is actually one of the drivers of innovation. I really don’t believe we’re ever gonna have
a law in this country protecting fashion. And I don’t believe it’s worth wasting a lot
of time on now. Every major fashion capital in the world is
in a jurisdiction that has at least some protection for fashion. And it’s just a huge disadvantage to the American
design community that we do not. I am confident at some point in my lifetime,
we will have some kind of US protection for fashion. But it hasn’t happened yet. I think that allowing artists and designers
to reap the benefits of their work is something that’s important. And it’s something that’s really essential
to intellectual property here in the United States. And the reason behind that is we want to encourage
people to get out there, create things, engage in public discourse, and contribute in a valuable


Leave a Reply

Your email address will not be published. Required fields are marked *