October 9, 2008
From the Los Angeles Daily Journal - "Confusing Patchwork of Laws Governs Fashion"
LOS ANGELES - The Design Piracy Prohibition Act, an effort to expand copyright laws to provide a three-year term of protection on fashion designs, is stalled in Congress. But an uptick in patent applications for garments and a spate of lawsuits over fabric copyrights are a sign that apparel designers and manufacturers are finding other ways to protect their products.
Serving these garment industry clients will require more than one practice group, intellectual property attorneys say.
"There's copyright, trademark and patent law, and they don't really overlap," said Staci Riordan, an associate in the fashion law services group at Thelen's Los Angeles office. "It's one of the hard things in this area."
Numerous firms, including Thelen LLP, have responded by establishing fashion practice groups and apparel teams.
The practice has grown especially active in Southern California, widely considered a hub of the fashion industry, after New York. The California Fashion Association reports there are more than 9,600 fashion-related business in Los Angeles alone that tap into an industry that generates $32.5 billion a year for the state.
One way clothing manufacturers have been attempting to protect fashion designs is by patenting an entire garment.
But patents aren't easy to come by. For a garment to be patentable, it must have a unique design, Riordan says. A complicated undergarment or a newly created type of moisture-wicking athletic fabric are two examples she cited that could, in some instances, pass the patent review process.
The effort and money involved in filing a copyright application is minimal and the gains to be had from successful litigation are significant. In some cases, manufacturers can make more money by suing than they could have earned through the sale of legitimate goods.
"We're seeing people who are just filing everything," Riordan said. "It's like tort litigation."
Riordan recalled a case that made it to court. The standard, as in any fabric copyright case, was whether the average individual would find the two fabrics substantially similar, thereby creating market confusion. The judge walked into a hallway and asked the first person he found whether the two samples were substantially similar. The case rested on the answer.
"If your grandma or uncle would think it's similar, then you've got a problem," Riordan said.
For more information, contact:
Staci Riordan
Thelen LLP
333 South Hope Street
Suite 2900
Los Angeles, CA 90071
Telephone: 213 576 8000
Fax: 213 576 8080
Direct Dial: 213 576 8059
Direct Fax: 213 687 1859
E-Mail: sriordan@thelen.com
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Intellectual Property
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