Project Runway: The Am Law Daily Edition
"Interesting side of copyright/patent/intellectual property -- design issues --HSM"
Much of what people generally think of when they hear fashion and legal issues are the knockoffs and fakes. Does a recession mean there are more knockoffs on the market?
The level of knockoffs generally increases in a downturn because people cut corners. As a result, enforcement increases to respond to the level of infringement. I don't know if that's going to happen this time. One of the big topics of debate at a conference on fashion at Columbia Business School last week that J.Crew CEO Mickey Drexler talked about was the death of luxury goods--that consumers would not want to carry a luxury bag in a down period. But what we see is luxury handbags often do very well no matter what because they are an investment purchase.
What's the level of enforcement like here in the U.S. as compared to, say, France, where so many luxury brands were born?
In France, the laws for protection of fashion designs and against counterfeiting are much more stringent than they are here. France has very pro-designer fashion laws. For example, you can't even possess a counterfeit. If you do possess counterfeits, they can be seized. In the U.S., if someone buys a counterfeit, there's no law against buying and possessing a counterfeit.
It's also Oscars Week, which reminds me of the post-awards morning talk show segments, with designers like ABS Allan Schwartz introducing dresses that look just like the couture gowns from the red carpet. Where does this fall into this world of knockoffs and copyrights and lawsuits?
If you were in France, it would probably be illegal, based on the distinctiveness and originality of the original dress. In the U.S., it's difficult, unless you can fit that design into some category that's protectable such as a design patent, trademark or copyright. That's been one of the impetuses behind the Design Piracy legislation that's been introduced in Congress to amend the copyright laws during the past few Congresses.
What does the legislation propose?
Basically, Design Piracy Prohibition Act legislation was introduced in Congress a few years ago, of which the Council of Fashion Designers of America has been very supportive, to amend the copyright to introduce a design protection law. The first recent bill was introduced in 2006, then again in 2007. It extends protections to the appearance of an item of apparel--and the definition of apparel is very wide ranging, including things like underwear, eyewear, belts, and handbags. The designer would have to register the copyright within three months of coming up with the design. There is design piracy legislation in Europe, India, and Japan. But it's never really made it out of Congress. Some people argue that a designer should not have a monopoly on the design of clothing.
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