It is Possible to Knock Off a News Story?

Well the writers at Women's Wear Daily definitely do not view imitation as the sincerest form of flattery. Women's Wear Daily did a story on what they think that Michelle Obama will be wearing to her husband's inauguration and ball. Women's Wear Daily did go straight to the designers and the designers provided actual sketches of designs (complete with a willowy looking Michelle Obama). Their sketches appeared in the news story like the picture above (left).

US Weekly seems to have lifted these very sketches for their own version of the same news story. WWD fought back with their own article that can be read here:

http://www.wwd.com/media-news/fashion-memopad/is-it-real-or-is-it-memorex-ami-extends-again-1895968?justin=1895968#/article/media-news/fashion-memopad/is-it-real-or-is-it-memorex-ami-extends-again-1895968?full=true

Since the sketches were voluntarily given by the designers to both news outlets, there is no foul play in the legal sense. WWD admitted this, but still pointed out that it seemed unethical in their eyes. Meow!

Keep Your Friends Close and Your Enemies Closer

Three days ago, Amazon and Google rallied behind online retailer EBay by filing an amicus brief on its behalf. The brief was written by Samir Jain and Patrick J. Carome over at Wilmer Hale. It details why the appellate court should uphold the district courts decision in favor of EBay. The brief outlines how Amazon and Google are interactive computer services that are multifaceted. Once of these facets is serving as a platform for internet commerce for buyers and sellers around the world who would have no other platform to actually do business with one another. The brief details that such a platform allows for development of efficient markets by allowing a forum for sales of used goods. These would be known as secondary markets.

The amicus brief outlines its argument for upholding the district court's decision by the premise that the generalized knowledge of infringement by third parties is not sufficient to trigger liability for contributory infringement. The brief rightfully argues that prevailing precedent has held that specific knowledge of infringement is required. The generalized knowledge of infringement as Tiffany would like the appellate court to hold would also place an undue burden on EBay. It would also make the whole development of sales of used goods on the internet obsolete.

This is an interesting turn of events. As posted earlier, IACC had submitted an amicus brief in favor of Tiffany's arguments. I read the amicus brief put forth by Amazon, Google and some others. It is very compelling because if the appellate court reverses the district court decision, it will affect internet commerce in a very scary way. It places a lot more responsibility on the shoulders of internet commerce providers such as EBay and Amazon to regulate the activities of sellers in a way that would be logically impossible given the current model. The internet commerce model would collapse and leave a host of dead internet giants in its wake. No wonder Google and Amazon submitted this brief. I will keep you posted about the upcoming details surrounding this case. It could change internet commerce as we know it.

Barbie Puts the Smackdown on Bratz

Well it looks like its going to be a better Christmas for Barbie this year....and right in time to battle off the recession blues. Judge Larson has given MGA until after the holiday season to clear shelves of Bratz dolls.

Mattel, Inc. won a court order to prevent MGA Entertainment from making and selling their Bratz Dolls because they were found to infringe upon Mattel's copyrights.

U.S. District judge Stephen Larson in California granted this court order yesterday. Mattel has lost sales to the popular Bratz Dolls since they launched in 2001. The Bratz Dolls are multi ethnic, provocative, and created by former Mattel designer Carter Bryant. Bryant created the name, sketches, and dolls while still employed by Mattel. Mattel claims that all of the creative work done by Bryant legally belongs to Mattel and as such, has enjoined MGA Entertainment from making the dolls, selling the dolls, and even using the name Bratz.

“Mattel has established its exclusive rights to the Bratz drawings, and the court has found that hundreds of the MGA parties’ products, including all the currently available core female fashion dolls Mattel was able to locate in the marketplace, infringe those rights,” Larson said in his ruling.

Mattel has been awarded $100 million dollars in damages which is five percent of its requested $2 billion dollars in damages. Mattel claims that the toymaker MGA Entertainment makes close to $779 million dollars in profits from sales of its Bratz dolls. MGA claims its profits from the dolls are closer to $450 million.

Please keep in mind that this is just an injunction against MGA. MGA can still appeal the order. But this appeal will be difficult considering that a jury has already found that MGA's dolls do infringe on Mattel's copyrights and awarded damages. The burden lies on MGA to find clear and convincing evidence that their dolls do not infringe on Mattel's copyrights. Judge Larson has indicated that certain dolls from the Bratz line can continue to be sold so long as they are packaged separately from the infringing dolls.

Mattel, Inc. has been looking strong in sales of its Barbie dolls and have captured sales with their Hannah Montana dolls. Mattel also makes the dolls for Disney's popular High School Musical series. Bratz has moved from the number two doll to number four. Will MGA try to fight this injunction? Will tweens be flocking to toy stores for their last chance to get a now "contraband" Bratz Doll? You know that the winner out of this will be EBay!

Cyber Monday > Black Friday (At Least EBay Hopes So)

After EBay has been slapped with lawsuits from designers because of its online flea market style, it has decided to revamp and rebrand itself in order to keep up with the Googles and Amazons of the world. Right in time for Cyber Monday, EBay has decided to put more effort into marketing its Brand New section. Brand New is EBay's bid to be considered not just a flea market, but an online retailer with great presence. Joe Fernandez from Marketing Week has put together a very good snapshot of EBay this past week:

" The new campaign moves eBay away from the animated characters used to represent the buyer-seller relationship. Instead, it focuses on the website's "Brand New" section - a part of the website which directly competes with the likes of Amazon and Play.com. Jason Goodman, managing director of Albion, the agency behind eBay's latest campaign, says: 'By explaining that the site now has thousands of brand new items, the kind of things that they're currently trudging up and down the high street for, we hope to be able to reframe eBay as a modern retailer.'

Check out the whole snapshot here: http://www.marketingweek.co.uk/cgi-bin/item.cgi?id=63501&d=259&h=263&f=3

Hello Kitty Really Does Wear Lipstick Even If She is Not a Pig

MAC Cosmetics had announced that it has inked a licensing agreement with Sanrio in order to start selling two lines of Hello Kitty branded makeup. As a refresher of sorts, a license is an agreement between a licensor (in this case Sanrio) and a licensee (MAC cosmetics). The licensor grants the licensee permission to distribute products such as the ones you see above using the licensor's trademark. Basically, MAC Cosmetics can peddle its Hello Kitty wares without fear that Sanrio will file a trademark infringement lawsuit.

*From WWD:

"MAC has been mining pop culture since the brand was founded,” said John Demsey, group president of the Estée Lauder Cos. Inc. “This is a sexy and innocent fashion line, and a true MAC moment. In these times, everyone can use a little fun — and a little Kitty.”

“The partnership was a no-brainer,” said James Gager, senior vice president and creative director of MAC Worldwide. “We cater to people who love to play with makeup.”
While in many licensing partnerships, the licensor shops his or her property around, MAC went after Sanrio, Hello Kitty’s owner, to do the deal. “They had never done makeup before, and I was certain that all those women who already own a bit of Hello Kitty would also want to own branded makeup,” said Gager.

It does seem a little strange to be peddling products based on a cartoon character that does not even have lips! I don't even think Hello Kitty wears makeup. Another disturbing aspect is the fact that the company is using a branded character that is meant to appeal to little girls yet it is rebranding it as a little bit more adult: "In-store visuals, shot by Nick Knight, show the polar opposite aspects of the collection. One is an image of a blonde model holding a black vinyl Hello Kitty doll, which will be part of the accessory line. The other visual is what Gager terms “more of a dominatrix creature.” The point, said Gager, is to show that makeup can be transformative."

While I was looking at these products that are going to be launched by MAC starting on Feb. 10, 2009 I could not help but notice that the Kitty Kouture line includes a Swarovski compact of Ms. Hello Kitty that looks eerily similar to the diamond/Swarovski pendants that Kimora Lee Simmons made in 2005. I wonder if Kimora will be lining up to buy her own Hello Kitty makeup, or if she will feel miffed that Sanrio did not do a makeup collaboration with her makeup line. From what I remember, her makeup line was sold in Sephora, but if you look at the Sephora website, it is no longer carried. I wonder what happened there? Perhaps this is why Sanrio agreed to MAC's licensing deal? It is a little strange for Estee Lauder Inc. to pursue such an unusual partnership though. The company typically caters to a more adult aesthetic. Perhaps this is why they are making Hello Kitty dark?

In short, this is one licensing agreement I am a little on the fence about. Stranger things have happened though. It would not be surprising if this does become a cult hit. Mixing a little dark with innocence is very alluring.

Hit the Road Mac

Well it looks like Apple has its hands full with piracy issues. After the whole rash of iClones (knockoffs of their iPhones), Apple has had to deal with Pystar's knockoffs of their Mac computers.

I am not that technically savvy, but taking Apple's software and applying to a PC is wrong. When you install the software, it warns you that it is only licensed to run on Apple products. Pystar basically uses a fully licensed unmodified version of the software, but that installation warning is still present. While the vision of the company is to provide consumers with a great software system without having to deal with buying an expensive Mac computer, it is a software system that was created by Apple. Apple did not license out the right to use that software with anything other than their own Macs.

Apple brought a copyright infringement suit against Pystar in August. Pystar responded with a countersuit of unfair competition alleging that Apple has a restraint on trade with its End User License Agreements (EULA) and wanted the U.S. District Court of Northern California to find the EULA void. This was a difficult argument to comprehend because a company loading its own hardware with its own software is not typically considered a trade restraint. Most legal experts noted that Pystar would have a hard time trying to argue that Apple has engaged in monopolistic business practices that would warrant an antitrust action.

It looks like those legal experts were right. The judge has rejected Pystar's claims that Apple has violated Sherman's antitrust laws. One of the key issues was the claim put forth by Pystar that the Mac OS is an independent market that was being dominated unfairly by Apple alone. One of Pystar's claims to this separate market were Apple's commercials that use the tagline "Think different". However Judge Alsup noted that: "Those advertising campaigns more plausibly support an inference contrary to that asserted in the counterclaim. Vigorous advertising is a sign of competition, not a lack thereof." (http://www.informationweek.com/news/hardware/mac/showArticle.jhtml?articleID=212100757)

While Pystar has twenty days to submit a motion to reconsider the dismissal, it is pretty clear that Pystar is up the creek without a paddle. This particular countersuit was being tracked by all of the major PC makers because if Pystar was successful, then it would have been able to pave the way for other PC makers to offer their own hardware that would have the capacity to run with Apple's software. Well looks like Apple lives another day without having to worry about that happening. At least for now.

McQueen Is the Real McCoy

Please take a close look at these two logos: Do you think they look similar? The invitees to Mr. McQueen's launch of his line McQ were also confused.

Mr. McQueen apparently was getting tired of the British discount chain ripping off his designs. The chain called their designs as being "inspired" by Mr. McQueen's work on the runway, but failed to compensate Mr. McQueen. He decided rather than fight the often futile fight of intellectual property rights litigation, he would fight back with his own knockoff. He took the font used by Topshop for their logo and did a play on words for his own invitation. The invitation looked like the logo on the left. It said "Chop Shop: Higher Street Fashion". The term "higher street fashion" is a mocking spin on Topshop's use of the term "high street fashion".

While I did an earlier post disparaging Mr. McQueen's offering of what looked like prison wear sweaters, I have to give Mr. McQueen points for striking back at Topshop with such a clever little invitation! Maybe his designs for the McQ line are really just items he wanted to offer any of the offending knockoff artists who rip off his designs when he finally does try to prosecute them?

As the Economy Tanks Pirates Need to Jump Ship

While the world is reeling from economic shock all over, there is a new resurgence in counterfeits seizures. Pirates who have enjoyed a prosperous few years without much government interference can most likely blame the economy for this new attitude in government intervention. It is actually a good thing for the government to try to intervene because these goods and their profits are not actually being reported to the government. The government can't benefit from the revenues. So with piracy there is a loss of potential revenues for both designers and the government. Now that the government is feeling a pinch, they are more willing to regulate and crack down on bootleggers. Here is an excerpt from Women's Wear Daily:

"COUNTERFEIT SEIZURES UP: U.S. Customs and Border Protection said last week that it seized more than 400 shipments of counterfeit and pirated goods in the New York and Newark, N.J., seaport in the fiscal year ended Sept. 30. The merchandise had a domestic value of about $100 million, a 53 percent increase over the previous year. For the total New York area, Customs last year conducted more than 700 intellectual property rights seizures, of which counterfeit textiles, apparel and footwear accounted for 78 percent."

I say bravo for the U.S. Customs and Border Protection for recognizing the legal rights of IP holders. It may have come because of government's own stake in revenues, but better late than never right?

H&M Does a Collaboration With Commes Des Garcons

Shortly after Alexander McQueen announced his collaboration with Target stores and his McQ line, H&M decided to release its line collaboration with Tokyo designer Rei Kawabuko (who designs the line Commes Des Garcons) on November 13, 2008.

H&M has already released the line in two of its stores in the Harajuku district and the Ginza district. Lines were long and the shoppers were excited.

I honestly feel that H&M is making a better move with its version of designer versioning because it actually tries to make fashion accessible without compromising on quality:

"As Rei Kawakubo said in the beginning of this collaboration, it is a fascinating challenge to work with H&M and take the dilemma between creation and business to its extreme and try to solve it. Witnessing the launch, Rei Kawakubo says: 'The first reaction from the customers is beyond our expectations. Comme des Garçons’ spirit together with H&M’s commercial sense seems to work very well.'"

'Rei Kawakubo’s intellectual and avant-garde collection for H&M is a success among our fashion-conscious audience in Japan. It is a particularly exciting but also very wearable collection featuring her signature deconstructed tailored garments and well-cut classics in special fabrics. Creating this collection together has been fun and a great experience,' says H&M’s creative advisor Margareta van den Bosch.

I agree with Rei Kawakubo's efforts to bring well cut classics in special fabrics. It is important for designers to realize that versioning is meant to make their designs accessible, but not cheap. It seems that some designers are looking at versioning as a way to fatten their bottom line with cheaply made clothes with their name attached to it that is distributed in major retail outlets, but that only hurts the designer in the long run when a consumer purchases that product and is disgusted with the quality of the designs. Viva H&M for bringing back affordable quality!

All Hail The McQueen: Coming to a Target Near You

*Photo courtesy of WWD*

After almost a year of lauding designer efforts to stave off the knockoffs by creating diffusion lines, one of our favorite designers Mr. Alexander McQueen has decided to work in conjunction with Target in order to bring you a diffusion line of his own called McQ.

While I am thrilled that Mr. McQueen has embraced versioning in this rather dismal economy, I am a bit thrown off by the name: McQ? Is it me, does it sound like a trademark ripoff of the famous nickname given to McDonald's: McD's? Clearly someone who was branding for Mr. McQueen was not really paying attention to the connotations of this new line's name. Is this a sign of clothing going down the fast food trails? The last thing we need is for diffusion lines to be the equivalent of disposable clothing.

My idea of versioning is taking a designer's work and reworking it in more accessible fabrics in order to help create a more affordable collection in order to capture consumers who would never purchase the high end look but may be inclined to purchase the cheap knockoff. For example, taking a crocodile bag and using the same look working with affordable leather instead.

However, the whole idea of disposable clothing runs counterintuitive to how the economy is flowing right now. The last thing any consumer (rich or poor) wants is a closet full of clothes that you can only wear a handful of times before they become utterly useless. Designers need to start thinking of offering more recession proof pieces. While I admire Mr. McQueen's designs, I am a bit disapponted at his offering of the sweater in the above picture. The colors are downright depressing, the sweater material looks cheap, and the shape is not flattering. The only thing keeping this whole look from falling apart is the chic belt which actually gives the sweater some shape. Has anyone been watching the styles on AMC's Mad Men? We need more clothes like that.

I think that while Target has been on the money with its Go International initiatives and pairing with hip young designers like Proenza Schouler, Behnaz Sarafpour and Holly Dunlap, this upcoming collaboration has me a little nervous. I hope that we can see some designs from the McQ line that knockoff artists will want to knockoff, not run away from.

Tiffany Gets a Boost in eBay Case by IACC Amicus Brief

*The image is courtesy of Robert Caplin/Bloomberg News*

Tiffany & Co. has filed an appeal with the United Court of Appeals of the Second Circuit in its bid to prevent eBay from selling counterfeit goods on their website that bear the Tiffany trademark. Tiffany had lost this lawsuit in the lower court.

In an amicus brief submitted by the IACC (International Anti Counterfeiting Coalition) recently, eBay's contributory liability is put forth as a reason to overturn the lower court's ruling. eBay was put on notice of the presence of counterfeits by Tiffany & Co. since 2003. The IACC contends that when a marketplace operator becomes aware of the presence of widespread counterfeits in its marketplace, it has a responsibility to stop these transactions and also stop providing services to those responsible for such transactions.

"Robert Barchiesi, President of the IACC said, 'Counterfeiting is a criminal activity carried out on global scale and, with eBay turning a blind eye, broadly on the Internet. In fact, eBay is estimated to provide the forum for 29 percent of the entire online counterfeit market, which has widespread public health and safety hazards, as well as causing substantial economic harm to legitimate business. Therefore, we need to take vigilant action to prevent it.

It is not acceptable that today eBay still tolerates blatant counterfeits being sold on its website. The lower court's ruling in Tiffany's suit against eBay, if left to stand, would result in consumers continuing to be victimized, and place an impossibly onerous burden on trademark owners to police the eBay site on their own. Our brief asks the Court to recognize both eBay's contributory and direct liability as well as the pressing need to take action to protect consumers'" (http://www.marketwatch.com/news/story/international-anti-counterfeiting-coalition-iacc/story.aspx?guid=%7B4E0C060D-E5AA-43C0-8A49-961CE2CF6A39%7D&dist=hppr).

I must say that I agree. Since eBay is such a large online marketplace, it would place an undue burden on trademark holders to go around trying to catch every counterfeit item that is placed on the market. This would be impractical and nearly impossible for smaller companies that hold trademarks.

However, it is also placing an undue burden on eBay to require them to track every merchant that posts an item for sale. Since eBay uses a business model that leaves them as an uninvolved third party in the transaction, it is hard to figure out who can be held responsible (besides the individual actually selling the counterfeit item). It will be interesting to see if this amicus brief helps out Tiffany & Co. in its appeal. More on this case in the next few months.

Is Mrs. O The Next Jackie O?

Michelle Obama really loves her Narciso Rodriguez. She is seen on the campaign trail in a black, white, and gray Narciso sheath dress on the left. She was rumored to be wearing a Narciso knockoff on the website Mrs. O (as seen in the maroon and white dress on the right). Luckily, it was just an "inspired" dress by the retailer H&M. Since cut, color, and style of the dress are not unique to Narciso Rodriguez, it is not seen as something that he as a designer can protect from other copycats. This is where the line between inspiration and flat out copying gets blurred.

Luckily, Mrs. Obama has fallen back on her favorite designer for election night. She wore this stunning black sleeveless dress with an ombre dye pattern of red. Her color palette choice can be seen as an olive branch for the disappointed Republicans. Her favored silhouette of the sheath dress is reminiscent of another iconic First Lady: Ms. Jackeline Kennedy Onassis.

It is interesting to see Mrs. Obama lean on one particular designer instead of wearing an array of designers. Ms. Jackeline Onassis also relied heavily on the designer Oleg Cassini for her wardrobe while she was First Lady in the White House.

I wonder if there will be an increase of knockoffs of this particular Narciso Rodriguez dress now. Those in the fashion world at the time of Mr. Kennedy's inauguration can recall how Ms. Onassis' skirt suit and pill box hat inspired others. Since it was a little windy, when she pressed her hand against the hat and it left a dent on it. Soon after, there was tons of knockoff suits with matching pill box hats. The most flattering touch was that everyone actually went out of their way to put a dent purposely in their own pill box hats.

It is clear that Mrs. Obama is also inspired. Please see the apricot homage to Jackie O above coupled with her hair and accessories. Is imitation the best form of flattery?

YES WE DID

I am writing this post because this is a pivotal point in United States politics. Barack Hussein Obama has been nominated as our FIRST African-American President-elect! While this is not directly related to Intellectual Property, I do sincerely believe that his presidency will be more effective in governing our country diplomatically in world trade to protect intellectual property rights for all. He will build bridges and be able to work in concert with countries in order to ensure that we do not lose any more jobs or revenue because of international piracy. I wish him well and I can not wait to blog about Intellectual Property under his administration.

More Thoughts On International Piracy

While this is a blog that focuses on Fashion Intellectual Property, sometimes it is nice to get a larger sense of what is going on in the world of Intellectual Property. Right now, the United States is at a very important juncture in its economic health. This election means lots of things, but one of them is how the United States will survive.

Whether you know it or not, intellectual property is necessary to United States' survival in the global market: "

"The FBI estimates that intellectual property theft costs the U.S. economy more than $250 billion a year. According to U.S. Customs and Border Protection, that translates into more than 750,000 lost jobs. Exactly what that means in terms of lost exports is tough to quantify, but Jonathan Huneke, vice president of the U.S. Council for International Business, believes it is profound. 'Products with significant IP (intellectual property) make up more than half of all U.S. exports, driving 40 percent of the country’s growth,' he said." (http://www.shippingdigest.com/news/article.asp?sid=5598&ltype=feature)

The scary thing is that most businesses do not realize that their intellectual property protection only covers their products within the United States. If you copyright an item in the U.S. or own a trademark in the U.S., it does not cover any copyright or trademark infringement internationally: "And according to Hank Cox, a spokesman for the National Association of Manufacturers, the problem is made worse by the fact that most small businesses do not know there is a problem. 'Research conducted in the spring of 2005 by the U.S. Patent and Trademark Office indicates that only 15 percent of small businesses that do business overseas know that a U.S. patent or trademark provides protection only in the United States,' Cox said.

An artist who was trying to break into the fashion industry learned this the hard way: "A painter and designer, who asked that her name not be used, two years ago sent out a fabric design to be reproduced by a Chinese manufacturer. She obtained an international copyright and seemed to follow all the steps needed for a modest expansion of her little operation in a resort town.
But as she was holding a press conference to unveil her new design, friends hesitantly told her that they had already seen purses with the design available in the shops of the tourist area where she worked. The counterfeits were from China.

'The fakes actually were turned around faster than her originals,' a friend said. 'There was nothing she could do that made any sort of economic sense as she had no resources to fight it. All of us in the design business learned a lesson that very small businesses must be very careful in outsourcing material.'

The painter got out of the outsourcing business and redirected her efforts to other, non-counterfeitable businesses, such as painting, a gallery and a restaurant." (http://www.shippingdigest.com/news/article.asp?sid=5598&ltype=feature)

Here is my take on this: It is necessary for regular Americans to stop obsessing over manufacturing jobs that are being outsourced. That is something that we can not control. However as this global economy gets tighter and more interwoven, it will become more necessary for Americans to pay attention to intellectual property rights. This election makes a difference. Go out and vote! Our economic well being depends on it.

CNN Takes a Knock At China's Knockoffs And The Simpsons Make Fun of Them

Just when you thought the ruckus about China's knockoffs has died down, CNN Money's column runs a piece with the best diplomatic dig I have read about China to date. The article was written in the context of explaining how and why China has not been able to break the U.S. market for cars yet:

"This means conquering the U.S. and European markets with something other than cheap knockoffs and reversing an abysmal safety record (83% of the country's recalls in recent years involved domestic-made vehicles, which command just one-fifth of the market)." http://money.cnn.com/2008/10/30/autos/china_cars.fortune/

I love how Mina Kimes writes about China's conquering the U.S. and European markets with "cheap knockoffs". I hate to point this out, but China would not be able to conquer these markets if we had more stringent laws protecting consumers against such knockoffs. I must also point out that China would not be able to sell its cheap knockoffs if there was not such a high demand for them either.

Speaking of knockoff cars, The Simpsons did a very good job making fun of knockoff cars (and the popular show Transformers) in its most recent Halloween special last night. In their Treehouse of Horror special, the first cartoon is titled "Untitled Robot Parody". Bart buys Lisa a knockoff of the Malibu Stacy convertible. The convertible morphs into a robot and instructs the other toys in Lisa's room to transform into robots. Soon after, the whole town of Springfield is overrun with huge robots battling each other. As typical of the show Transformers which is what The Simpsons is parodying, the whole town is left in shambles after the robots fight their battle.

I wonder what the Copyright Czar would have to say about that.

Sarah Palin REALLY Likes Knockoffs

Well it seems like Sarah Palin really likes her knockoffs. Eric Wilson mentioned this in his article in the New York Times on October 22, 2009. Ms. Palin was seen wearing a knockoff Burberry scarf when she arrived at the governor's mansion for the first time in 2006. It seems that she must have liked that knockoff so much, that she wore it again during an ice festival.

Ms. Palin may be a soccer mom who seems accessible to many Americans, but this show of wearing knockoffs strikes me as being even worse than wearing clothes bought on a sky high budget by the RNC.

When you purchase knockoffs, you are encouraging things such as trademark dilution, blurring and tarnishment. These are some of the harms that are borne not only by the fashion designers, but also consumers.

When you purchase a knockoff, you are most likely buying an inferior product that is assembled in a country that is abusing its workers in order to create a cheaply made product for your consumption. This worker abuse can be anything from being severely underpaid (if at all) or use of child labor. Does Sarah Palin want to be known as a person who encourages the use of child labor all in the name of fashion?

Here is another example of her daughter wearing a Louis Vuitton knockoff.

Clearly, since Piper is only seven years old, she was under the influence of her dear old mom with this fashion wardrobe choice. By the way, you can tell that this handbag is a fake because the LV logo would never be cut off at the seam. Only the symbols are cut off at the seam with authentics while the LV logo itself is always centered.

Another point of concern is that with the sale of knockoffs such as this one, it is potentially funding criminal activities such as drug trafficking, prostitution, child labor, and even terrorist groups. When you make a transaction in the black market, the money from that transaction could be floated into any of these activities even without your intention.

Is this what Sarah Palin wants to encourage? I should hope not! It is sad to think that Piper may be holding a bag that may have been sewn by a counterpart that is her age.

In other Sarah Palin knockoff news, it turns out that perhaps Ms. Palin is not the sharpest tool in the shed when it comes to fakes so we should all give her a break. She was pranked by the Mask Avengers by the name of Marc-Antoine Audette and Sebastien Trudel who are prominent Canadian comedians. Audette posed as the French President Nicolas Sarkozy and spoke with an extreme French accent where he pretended to like hunting, alluded to Ms. Palin's comment about Russia being visible from Alaska, and also poked fun at Dick Cheney's hunting skills. Ms. Palin unfortunately, did not pick up on any of these verbal cues. It is clear that Ms. Palin should be not criticized too harshly for her knockoff fashion choices because it was clear from this phone call that she can not tell the difference between a fake and the real deal.

The Swiss Mean Business

When it comes to preventing counterfeits, it seems that the Swiss mean business. In particular, Vacheron Constantine's new watch called the Quai de l'Ile is meant to illustrate this. The Swiss watchmaker claims that is has created a watch that will be impossible to counterfeit. The company insists that by using technology such as invisible UV marking, laser perforations of certain of the watch's parts, and high security inks used in important goverment issued items such as passports and currency all make it highly unlikely that a counterfeit of the watch can be made.

Here are some interesting statistics about counterfeit luxury watches: "The Swiss Customs Service has estimated that as many as 40 million counterfeit watches are put into circulation each year. Switzerland last year exported only about 26 million watches, so there's a fairly reasonable chance that the expensive-looking watch on your neighbor's wrist could be a fake.
Watchmakers have long fought counterfeiters by adding special stickers and limiting supply through authorized dealers. Rolex -- probably the most faked watch of all time -- strictly controls the numbers of its watches that can be sold by a dealer and requires that all repairs be made with authorized parts. Rolex also puts a green hologram sticker on the back of its watches -- though counterfeiters forge that, too." (http://online.wsj.com/article/SB122411896958338969.html?mod=article-outset-box)

Swiss legislation has gotten tougher. It requires that any counterfeit watch confiscated at its borders be destroyed.

The watch was a collaboration between the company's CEO and the Swiss Passport artist Mr. Roger Pfund. Such a collaboration allowed the company to have access to security inks that are used on currency and passports. This access was granted courtesy of Orell Füssli Security Printing, a Zurich firm that prints bank notes and Swiss passports.

It seems that all of these security measures are a kind of challenge to all counterfeiters out there to make a quality knockoff, but given that the company is planning to only sell 800 of these watches, any smart consumer can quickly figure out if what they are beholding is the real deal or a fake. The watch will sell between $29,000 to $60,000 and can be customized according to the consumer's preference. There can be up to 400 different varieties of the watch.

According to the company's CEO Juan-Carlos Torres, . "You have to secure a person's investment," he says. "It's our responsibility."

Given that there is a recession looming over our heads, is this a smart investment? I would say no. Why? Well paying that much for a Swiss watch just because it can't be counterfeited just seems plain silly. It also reeks of excess that is in poor taste at the moment. A company's responsibility is to provide a quality product that is protected by tougher legislation in the spirit of protecting the consumer. This just seems like a protection of snob appeal. I don't see any responsibility being shown by Vacheron with such a product launch.

Woody Allen vs. American Apparel? Oy Vey!

So back in April 2008, Woody Allen decided to sue American Apparel's Dov Charney for "misappropriation and commercial use of his image" in order to sell products by the company. Apparently the photo is a still shot from the famous Woody Allen film Annie Hall. Annie's grandmother envisions her grand daughter's hipster boyfriend as a Hassidic rabbi. The Hebrew written at the top says "Our spiritual leader" or something to this effect.

Here is a quickie lesson about misappropriation in case you fell asleep during your Unfair Competition Class: It is a claim that is meant to protect the commercial value of a person's image when it is appropriated for advertising or trade purposes. Courts have held that this right does not override the right to freedom of press and freedom of speech though. Expressive and newsworthy publications are exempt from these types of claims if the outlets are deemed to be in the public's best interest and the images are used in furtherance of such public interest.

As you can tell, it seems like American Apparel will have a lot of explaining to do since they are using Mr. Allen's image for commercial purposes without informing him and without compensating him either.

According to Women's Wear Daily, the papers filed in federal court in Manhattan indicate that the judge has ruled that the case is not eligible for mediation. While a trial date has not been set, this new ruling indicates that the court may rule favorably for Mr. Allen with regards to his case. It will be interesting to see what happens with this case. If this is in favor of Mr. Allen, will other celebrities follow suit?

Counterfeit ≠ Luxe

Contrary to my theory that the demand for fakes will wane as this economy takes a turn for the worse, a group of six individuals in Florida have proven me wrong. These six individuals were involved in trafficking counterfeit luxury goods. All of the individuals are Jacksonville, FLA residents.

They were indicted by a federal grand jury and can each face a maximum sentence of ten years in prison as well as a fine worth over $2 million. They are alleged to have sold goods bearing the trademarks of brands such as Chanel, Gucci, and Louis Vuitton. (http://www.wwd.com/business-news/legal-briefs-1844081?gnewsid=2e7d59217966e95a399bc884623c36b5).

Footwear News Talks About Fakes

Footwear News (one of my favorite trade publications) has done an interesting article about counterfeits, fakes, knockoffs and other harmful items in the fashion industry. Some of the statistics from the article were definitely an indicator that these items are not going away and that this problem needs to be addressed:

"According to U.S. Customs, for the first half of the fiscal year started Oct. 1, 2007, 36 percent of all intellectual property rights seizures was footwear, worth an estimated $40.3 million. Of those seizures, 96 percent came from China. For all of fiscal 2007, 40 percent of the seizures was footwear, up from $63.4 million in 2006 to $78 million.

While counterfeiters are getting craftier, customs officials are working diligently to catch counterfeit goods before they hit the streets. Earlier this month, officials announced at a news conference held by Todd Hoffman, U.S. Customs director at the Los Angeles-Long Beach Seaport, that the agency had a record-breaking year of increases in seized goods. There was a 50 percent rise in seizures over fiscal-year 2007, an increase in value of 148 percent. The Los Angeles-Long Beach customs office seized 357 shipments of counterfeit and pirated goods, with a domestic value of $71.4 million. According to the International Anticounterfeiting Coalition, counterfeiting costs U.S. businesses $200 billion to $250 billion annually and is directly responsible for the loss of more than 750,000 American jobs.

Among the factors that the agency said contributed to the record seizures were new partnerships formed among several agencies, including Immigration and Customs Enforcement, the Food and Drug Administration and the Consumer Product Safety Commission. Additionally, a joint working group was created between Customs and Border Patrol and Immigration and Customs Enforcement.Recently, Footwear News spoke with David Brener, a 22-year customs veteran and the chief intellectual property rights operations branch officer in Washington, D.C., about the state of counterfeiting and what is being done to combat the problem."

A loss of 750,000 American jobs? If you want to read more of this article, I encourage that you check out the FN website link: http://www.footwearnews.com/site/article.php?id=1576

Sour Economy = A Drop in Fakes?

With the economy in dire straits, how will the fashion world fare? There are people who would posit that there will be a rise in the demand for fake luxury goods, but I am going to go against the grain and posit that the economy will actually force consumers to look for "recession proof" items. Recession proof items are typically not as logo oriented and focus more on quality materials and craftsmanship. If a consumer can only afford to purchase one luxury item, that consumer will make sure that there is no obvious logo pattern and that the item can stand the test of time. There will also be a tendency to pick "safer" colors such as basic black, camel, or classic red. This is actually how the French approach fashion. The French will purchase a few well made pieces from famous design houses and wear those pieces daily. Since the trend with fakes tends to be towards "trendy" pieces that are logo heavy, it seems that this shift towards the classics will bring about a drop in fakes.

In the meantime, the fashion industry is fearing the complete opposite. Here is a website that is devoted to anti-piracy measures in the fashion industry: http://www.bazaarelite.com/fakes.asp
I appreciate the efforts, but I do believe that the demands for fakes will be going down. We are definitely heading for a fashion industry that is less about excess and more about endurance. While I find Isaac Mizrahi's recession fashion advice to be a little on the ridiculous side (http://themoment.blogs.nytimes.com/2008/10/09/isaac-mizrahis-luxury-guide-to-recession-style/?WT.mc_id=TM-D-I-NYT-MOD-MOD-M065-ROS-1008-L1&WT.mc_ev=click&mkt=TM-D-I-NYT-MOD-MOD-M065-ROS-1008-L1) he does have a point about investing in quality versus quantity. I agree with Diane Von Furstenberg in her efforts to protect designers, but perhaps designers should think about versioning. This is exactly what Mr. Mizrahi does at Target. He makes affordable clothing that reflects the high runway style in his more expensive lines. I recommend that buyers who are interested in fakes to start looking at more affordable luxury lines that are legitimate. When you buy a fake, it does not do anything but make you look bad. The quality of the craftsmanship does not last, the item becomes dated and you are left with something you stick in the back of your closet. Good luck to us all.

Denim Knockoff Detectives? Sounds Like My Dream Job!

So the LA Times did a whole article that chronicled the dealings of Chris Johnson. Chris Johnson is a detective who goes around trying to find denim knockoffs for his premium denim brand clients so that they can start lawsuits with the people who sell such knockoffs. Its an interesting article that definitely highlights the reasons that the United States needs to start protecting fashion intellectual property rights.

According to the article, "Customs officials seized $197 million worth of fakes in 2007, up 27% from the previous year, according to U.S. Customs and Border Protection. Last year, customs officials seized $18 million worth of counterfeit apparel, which includes denim, from China alone -- up 29% from the previous year. Those numbers represent only a small slice of the counterfeit goods traded every day: According to the International Anticounterfeiting Coalition, the global trade in illegitimate goods has increased from $5.5 billion a year in 1982 to $600 billion today."

These are numbers serve as a reminder that this is a growing black market economy that ultimately ends up hurting the U.S. economy. It also hurts the consumer. If a consumer purchases a knockoff, the consumer ends up buying an inferior product that is not the same as the original. It also serves as trademark dilution because other consumers will mistakenly assume that the knockoff is simply an inferior product put forth by the original company.

The numbers also illustrate that the knockoffs are arriving from countries like China who is experiencing a legitimate economic boom in its own right. However, this boom is also being bolstered by illegal activity that the U.S. government has not really attempted to regulate too heavily until now. Regulation of such activity would serve to bolster local economy. I know it seems like an isolationist attitude, but I simply propose that we prevent Chinese counterfeits from swallowing potential sales for U.S. denim companies. A majority of premium denim are manufactured from California, in particular Los Angeles. If the government prevents these bootleggers from delving into the economic pie of denim consumption, then those consumer dollars would be going back to domestic companies.

If you want to check out the article for yourself, here is the link:

http://www.latimes.com/news/printedition/front/la-fi-jeans6-2008sep06,0,2028328.story?page=1

Back and Better Than Ever!

I am done studying with the bar. Let's just say that everything looked familiar enough, but I pray that it was enough to pass. Now let's get right into what's going on in the world of Fashion Intellectual Property:

Footwear News did a blurb about how the American Bar Association is backing the Design Piracy Prohibition Act or a modified legislation that would protect designers a little better:

"The adopted Resolution 2008 Council-1A reads, in part, '…believing that there is sufficient need for greater intellectual property protection than is now available for fashion designs, [the section] supports, in principle, enactment of federal legislation to provide a new limited copyright-like protection for such designs….'

You can read the entire blurb here:

http://www.footwearnews.com/site/article.php?id=1372

Keep reading for more in depth, frequent posts.

Taking Time Off

I am just posting this to let my few readers know that I will not be posting during the month of July. I am studying for the bar exam at the moment, but I will be back to posting with regularity starting in August. Have a safe, healthy, happy 4th of July! See you back in August.

A New Copyright Czar?

According to BusinessWeek today, there is a push from powerful lobbyists such as the Motion Picture Association to have Congress create a position for called an Intellectual Property Enforcement Representative. This position would entail cracking down on piracy that the lobbyists state are eating their substantial revenues.

Another reason for this push may be the lack of cohesion in intellectual property enforcement. It seems that corporate America is getting frustrated with the lack of consistency with intellectual property protection. Here is an excerpt of the article:

" Legislators say existing efforts to thwart IP theft fall short. 'The lack of coordination between the federal agencies seems to be one of the biggest hurdles we face,' Senator Patrick Leahy (D-Vt.) said at a June 17 Senate Judiciary Committee hearing focused on strengthening protection of intellectual property. 'Enforcement, protection of these rights is too important to be piecemeal.'

You can check out the rest of the article here:

http://www.businessweek.com/technology/content/jun2008/tc20080622_031095.htm?chan=top+news_top+news+index_news+%2B+analysis

While it seems like there is a need for consistency with intellectual property protection, is there a line being crossed? If American citizens are paying for stricter enforcement of taxpaying dollars to protect private industries such as the entertainment and pharmaceutical sectors, are we venturing in to something that is less capitalistic? Will this benefit the general welfare of Americans?

While I am in support of creating more consistent legislation in order to protect intellectual property rights, these rights are not absolute property rights. In the historical context, intellectual property has always been a balance between the rights of the private owner versus the rights of the general public. While I approve of Congress' efforts to make this body of law more consistent, the creation of this copyright czar seems to be little more than a way to appease lobbyists while not creating something that may be more beneficial and efficient in IP enforcement. How is one person supposed to solve the slew of problems that currently exist with intellectual property protection?

The Tide is Turning in China

After much outcry over the knockoffs being produced from China, Mr. Wang Qishan (the Vice Premier of the State Council of the People's Republic of China) has written an article about the moves that China is trying to make in order to address international concerns of intellectual property rights and knockoffs.

You can access the article here:

http://online.wsj.com/article/SB121365431013978945.html

Here are some excerpts:

"In recent years, in order to stimulate enthusiasm for invention and innovation and to promote economic development and social progress, China has intensified IPR protection. Since 2004, a nationwide campaign for IPR protection has been carried out each year to end trademark, patent and copyright infringements -- particularly in import and export, wholesale markets, trade fairs, original-equipment manufacturer, printing and reproduction.

The ongoing 2008 IPR protection campaign includes 280 measures in 10 areas. In April alone, more than 810 events under the framework of "IPR Protection Publicity Week" were staged by competent authorities in different localities to enhance public awareness. More than 1.3 million people were directly involved in these activities.

IPR protection in China has paid off. Thanks to intensified efforts to raise public awareness of IPR protection and severe penalties for IPR violations, more and more people have begun to say no to counterfeit products and pirated software; applications for trademarks and patents have multiplied; and enterprises are more aware of the importance of branding, resulting in more branded products and fewer counterfeits in the market."

While it seems that China is trying to make a good faith effort to combat intellectual property violations, only time will tell how China can resolve the piracy issues that it is now facing. It is also facing pressures from the United States who maintains a large source of revenue from IP protection.

Post World War II, intellectual property has been an important source of revenue for the United States. “To protect its economic interests, the United States has been very aggressive in pushing for a universal intellectual property regime, which offers information and high-technology goods uniform protection throughout the world” Peter K. Yu, From Pirates To Partners: Protecting Intellectual Property In China In the Twenty-First Century, 50 Am. U.L. Rev. 131, 132 (2000). The United States’ aggressive stance towards intellectual property rights has been focused particularly on one of its largest delinquents: China.

The article in the Wall Street Journal seems to paint a picture that suggests that China understands the importance of IP protection. Mr. Wang writes of how it is not as advanced as the United States in terms of IP protection because of its status as a rapidly developing country:

"As a developing country in the process of accelerating industrialization and urbanization, China still has a long way to go before it can catch up with the U.S. in IPR generation, usage, protection and management. We hope that China and the U.S. can work more closely on intellectual property rights, duly recognize their disparities in capabilities and standards of IPR protection, and properly handle their differences and disputes.

Our two countries need to work together to overcome difficulties and challenges and encourage our business sectors and the general public to create more intellectual property rights for the benefit of our two peoples and humanity as a whole."

While I agree that it is beneficial for the U.S. and China to work together on IP protection, I also think it is important for the U.S. and China to also include other sovereign states and entities. It would be helpful for sovereign states to adopt a uniform piece of legislation (sort of like TRIPS but with more teeth) that would have enforceability. I guess we will have to see what China can do at the moment about piracy and IP rights in the next few weeks.

Knockoff Artists Take Aim at Small Business

Here is a link to an article about the designers Foley & Corinna.

http://www.nytimes.com/2008/05/21/business/smallbusiness/21look.html?_r=1&ref=smallbusiness&oref=slogin

The poor designers have been knocked off by the likes of Forever 21 after their dress was spotted on Paris Hilton. Another bonus of the article is that it features fellow blogger Susan Scafidi from Counterfeit Chic!

Knock Yourself Off Instead of Out

The left is a bag from Joy Gryson's original line of bags and the bags on the right are her bags from a line she has developed for Target.

Since there are so many ways that designers get their designs knocked off, what is a designer supposed to do? I personally am a little hesitant about the Design Piracy Prohibition Act. There is a question of enforceability: What is protected and what is public domain? How long should a design be protected? I agree that designers should be able to protect their creative work, but should this be at the detriment of the budget conscious consumer? I actually have a proposal for designers in order to decrease the demand for counterfeit goods. Once the demand for these goods decreases, the less likely there will be a chance for knockoffs to be present in the market. Why would consumers buy knockoffs if they have better alternatives?

I recommend a simple business model of versioning. Versioning is when you decide to price something based on value versus cost. Since different consumers are willing to pay different price points for the same product (i.e. a pair of pants), versioning allows designers to offer the same type of product at different price points in order to attract more consumers. Versioning serves as a way for designers to figure out the different consumer groups based on their willingness to pay for a product. Consumers with a high willingness to pay for designer goods will be at the luxury end while consumers with a lower willingness will be at the cost conscious end. This leads to a business pricing differential. How can a designer use this model?

Designers can make different lines at different price points. Some designers have already done this. For example, Donna Karan makes a less expensive DKNY line. Other designers have taken knocking off their own designs to another level. Collaborations with large chain stores also prevents knockoffs. For example, the collaboration of Karl Lagerfield with H&M, Viktor & Rolf for H&M, Vera Wang's Simply Vera line in Kohl's, Isaac Mizrahi for Target, Proenza Schouler for Target, etc.

Here are some examples of designer versioning:

The versions on the left are for budget chains and the versions on the right are the original design collection. Here are pictures of Proenza Schouler's lines and Vera Wang's lines.

Fashion: Utilitarian or Worthy of Protection?

There is a lack of developed American jurisprudence to handle the sophisticated requirements of art in fashion and reconcile them with the utilitarian functionality of fashion: “Under current copyright law, a two-dimensional sketch of a fashion design garners copyright protection as a pictorial work. However, artists lose all copyright protection as soon as they render the sketches into three dimensional garments because clothing is not normally considered to have separable elements.” Megan Williams, Fashioning a New Idea: How the Design Piracy Prohibition Act Is a Reasonable Solution to the Fashion Design Problem, 10 Tul. J. Tech & Intell. Prop. 303.

This Elie Saab dress design sketch would be protected under current U.S. copyright law, but the resulting physical dress from this sketch would not be protected. This approach to copyright protection seems to be ill fitted with the Supreme courts ruling on mass produced, industrially designed products: “Mazer v. Stein granted copyright protection to a lamp because the sculptured lamp base was found to be a ‘work of art’ separable from the objects primary use as a lighting fixture. For the first time, the Court granted copyright protection to an industrially designed, mass produced product.” Id. at 309-310. However, in spite of this ruling by the Supreme Court, American jurisprudence refuses to extend this to dress designs. This is because a design’s artistic elements can not be separated from the utilitarian use of the garment. Id.

In the House Committee hearing for the Design Piracy Prohibition Act, it was contended that this refusal to incorporate fashion design into copyright law actually goes against the natural intention of copyright law: “A law professor at the same subcommittee meeting stated that it ‘is the constitutional intent of copyright law to promote and protect the development of creative industries by ensuring that creators are the ones who receive the benefit of their own intellectual investments.’ Allowing fashion designs to be protected by copyright does not violate the theoretical basis for copyright protection.” Id. at 312.

This law professor is none other than the author of another blog called Counterfeit Chic. You can find her blog link on the right hand side of this blog. I agree with Ms. Scafidi. However, there is a fine line that can be crossed when it comes to enforcing the rights of designers to their creative designs. How can a court decide when a design is simply utilitarian and when it is truly creative? How long can a design be protected for? Due to the cyclical nature of fashion as well as the number of seasons, is it really fair to afford protection on designs for more than a season? How can a designer actually enforce these protections?

Juicy Gossip Over a Juicy Lawsuit

Here is a direct

article from the AP (Yahoo! news site):

"Juicy Couture Files Trademark Suit Over Packaging"

Tuesday April 29, 5:12 pm ET By David B. Caruso, Associated Press Writer

Juicy Couture files trademark suit against Victoria's Secret over candy-shaped packaging
NEW YORK (AP) -- Clothing company Juicy Couture Inc. has filed a trademark infringement lawsuit accusing rival Victoria's Secret of ripping off one of its marketing gimmicks by selling apparel in packages that look like sugary treats.

The suit, filed late Monday, claims that Victoria's Secret has been imitating its designs and logos for years and incorporating them into its "Pink" line of lounge wear. Lawyers for Juicy laid out a long list of complaints about copying in the suit, saying the Pink line parroted everything from Juicy's coat of arms-style emblem (both include a dog, a crown and a capital letter), to its most common color scheme (pink), to its best-known design (pants with the brand name emblazoned suggestively across the backside).

The trademark infringement claim, however, focuses on how both companies package some of their products. Juicy said it began using candy-themed packaging in 2006, and now sells "Sweet Shoppe" apparel in bundles that look like lollipops, bon bons and ice cream cones. The suit accuses Victoria's Secret, a unit of Limited Brands Inc., of using the same types of packaging starting a year later.

"In copying Juicy Couture's distinctive and unique trade dress, defendants crossed the line from design imitation to trade dress infringement," the lawsuit said.
Both clothing lines are aimed at women in their late teens and early twenties.
A Limited Brands spokeswoman said the company had no comment on the matter.
The lawsuit was filed in federal court in Manhattan just days after Victoria's Secret raised a complaint of its own about knockoffs.

The company sued department store giant Macy's in early April, accusing it of ripping off the Pink brand with imitation clothing marketed under the name "Pinkish." Among other things, Victoria's Secret said that Macy's and clothing manufacturer Intertex Apparel had improperly mimicked its coat of arms (both have a crown and a big letter "P"), as well as its dog logo, and one of its top selling designs: sweat pants with the name "Pinkish" scrawled across the seat.

A spokesman for Macy's declined to comment on the suit.
There is yet another layer to the litigation; Phat Fashions LLC, a company founded by hip-hop legend Russell Simmons, sued Victoria's Secret over the Pink line in March, accusing it of using a logo that too closely resembles its own trademark on Phat Farm clothing. Both emblems feature the letter "P" on a shield, framed by laurel leafs. "

Here are some comparisons:

The top is a tote from Juicy Couture and the bottom are similar totes sold by Victoria's Secret.

Here are some more pictures:

The picture on top is Juicy Couture trackwear and the one on the bottom is Victoria's Secret. It does seem similar, but based on current U.S. trademark law, I don't know if Juicy Couture will win this battle.

Fashion As Art

Individuals in favor of the Design Piracy Prohibition Act have used the idea of creativity as a reason why fashion designs should be included into copyright law in the United States: “Both fashion designers and the public at large consider clothing and accessories to be not only useful articles but also works of creative expression.” Laura C. Marshall, Catwalk Copycats: Why Congress Should Adopt a Modified Version of the Design Piracy Prohibition Act, 14 J. Intell. Prop. L. 305, 321 (2007). . While these works of creative expression have a utilitarian function, most designers work on their designs from a creative standpoint: “Fashion designers frequently describe themselves and their work in artistic terms; they speak of their vision, their vision, their inspiration, the craftsmanship of their clothing, and the theme or message of a particular collection. Many art museums throughout the country, such as New York City’s Metropolitan Museum of Art and Guggenheim Museum, maintain temporary or permanent fashion exhibits alongside their fine art collections.” Id. at 323-324.

There is a type of discrimination present among what copyright law deems as worthy of protection. Why is it that other creative industries are afforded protection under the Copyright Act but not the fashion industry? This perception of fashion as art by cultural institutions, the designers themselves and the public should give these designers the same rights as recording artist: “[T]he perception of fashion as art suggests that designers should receive intellectual property rights comparable to those of their peers in other creative industries.” Id. at 323. Unfortunately, this perception does not match the reality of the intellectual property arena of the United States: “Yet, while U.S. copyright law provides protection to visual artwork with non-utilitarian functions, architectural designs, and even boat hulls, the law does not protect clothing designs.” Id. at 324.

Here is an excerpt from a New York Times article that shows that art and fashion do indeed go together: "Andy Warhol may have been one of the first to recognize that a little bit of art and a little bit of commerce go a long way, but a new exhibition of Takashi Murakami's work at the Museum of Contemporary Art in Los Angeles takes Warhol's modus operandi to a new level. Aside from showcasing a complete retrospective of Murakami's anime-inspired graphic art, the exhibition will include items from his past collaborations with Louis Vuitton -- and a 1,000-square-foot Vuitton mini-boutique on the museum's mezzanine floor. "

This is the link to the full article: http://query.nytimes.com/gst/fullpage.html?res=9B07EED81E31F934A35753C1A9619C8B63&scp=2&sq=murakami%2C+art&st=nyt

While the clothing design itself is not granted copyright protection, the sketch of a fashion design is. This indicates that there is a lack of developed American jurisprudence to handle the sophisticated requirements of art in fashion and reconcile them with the utilitarian functionality of fashion: “Under current copyright law, a two-dimensional sketch of a fashion design garners copyright protection as a pictorial work. However, artists lose all copyright protection as soon as they render the sketches into three dimensional garments because clothing is not normally considered to have separable elements.” Megan Williams, Fashioning a New Idea: How the Design Piracy Prohibition Act Is a Reasonable Solution to the Fashion Design Problem, 10 Tul. J. Tech & Intell. Prop. 303.

This approach to copyright protection seems to be ill fitted with the Supreme courts ruling on mass produced, industrially designed products: “Mazer v. Stein granted copyright protection to a lamp because the sculptured lamp base was found to be a ‘work of art’ separable from the objects primary use as a lighting fixture. For the first time, the Court granted copyright protection to an industrially designed, mass produced product.” Id. at 309-310. However, in spite of this ruling by the Supreme Court, American jurisprudence refuses to extend this to dress designs. This is because a design’s artistic elements can not be separated from the utilitarian use of the garment. Id.

Yet, look at some art inspired fashion:

This is the work Murakami (who is a well known artist inspired by popular culture) did for Louis Vuitton for its handbags.

This is a piece called "For Miuccia Prada" by John Baldessari. He is part of a program that is patronized by Prada that combines art with Prada's spaces.

In the House Committee hearing for the Design Piracy Prohibition Act, it was contended that this refusal to incorporate fashion design into copyright law actually goes against the natural intention of copyright law: “A law professor at the same subcommittee meeting stated that it ‘is the constitutional intent of copyright law to promote and protect the development of creative industries by ensuring that creators are the ones who receive the benefit of their own intellectual investments.’ Allowing fashion designs to be protected by copyright does not violate the theoretical basis for copyright protection.” Id. at 312.

Based on some of the images here, it would be a safe contention to say that there is that requisite spark of creativity in the development of fashion designs. However, based on the transient world of fashion seasons, it will be tricky to fit fashion IP into the world of copyrights.

Let Them Have Purses

There are those who are opposed to attempting to protect the intellectual property rights of fashion of designers. They argue that affording designers these rights is akin to trying to kill the fashion industry. They argue that passing such a bill like the Design Piracy Prohibition Act will only serve to protect elite designers and keep prices on couture designs unreasonably high for the average consumer: “However, some scholars hope that the United States will resist the international pressure, arguing that the framework of free copying in this country actually benefits the fashion industry as whole more than the stricter laws of Europe.” Laura C. Marshall, Catwalk Copycats: Why Congress Should Adopt a Modified Version of the Design Piracy Prohibition Act, 14 J. Intell. Prop. L. 305, 309 (2007).

Those opposed to stricter intellectual property protection for fashion design argue that piracy actually induces more creativity and economic growth. They argue that the fashion industry tends to remain stable in a ‘low IP equilibrium’ Id. at 320. Since piracy involves diffusing the designs of elite couture houses to a larger audience that normally would not have access to these designs, it makes the exclusivity factor of the designs obsolete to the elite clientele of the creators of the designs.

There is a seesaw of induced obsolescence and trend anchoring: “Induced obsolescence is the phenomenon by which trends become distasteful to their initial, wealthy, customers as knockoffs of these trends ‘diffuse to a broader clientele’ at cheaper prices.” Id. The designers are put into a situation where they must constantly be creative in order to keep up with this clientele: “Widespread copying drives the elite fashion houses to create more new designs as the trend-of-the-moment becomes defunct.” Id. Proponents in favor of preventing designers from intellectual property rights for their designs claim that this constant need for new designs will help spur creativity and also aid them in more sales of their designs.

Trend anchoring is a concept that is intrinsically tied to copying and piracy in the fashion industry: “Raustiala and Sprigman argue that this phenomenon of trend anchoring, brought by ‘free appropriation’ among designers, is a key element of the fashion economy. Design houses tolerate copying, knowing that they may be the ones borrowing the idea the following season.” Id. at 321. Trends help consumers identify the items that they must have for the season in order to be fashionable. It helps bridge the gap between needs and desires.

Trends also benefit the designers since they induce the consumer to believe that their designs are a necessity: “Anchoring allows consumers to identify discernible trends of each season; a firmly established trend then becomes the “must have” item of the season, and fashion designers throughout the industry benefit from this trend driven consumerism.

One of this year's must have items: Tory Burch's Reva Flat

While these arguments are certainly plausible and justifiable, they also recognize one important factor: that the designs created by fashion designers are creative works. While the creative works that they create are useful, there is a requisite “spark of creativity”. Feist Publ’n Inc. v. Rural Tel. Serv., 499 U.S. 340 (1991).

Notice how the Tory Burch flat has a "spark of creativity", but how it also borrows from other designer signatures. For example, the basketweave leather work is indicative of Bottega Veneta. If we grant Ms. Tory Burch property rights for this design, can Bottega Veneta claim infringement for this use of basketweave leather?

Where do we draw the line between designs that are in the public domain and designs that are protected?