Safe protection/safe inspiration: IP law for fashion designs – Lexology

This is one of the better overviews I have read of the current state of the art with fashion IP protection.

Given how cannibalistic design can be, it is increasingly important that designers remain as au courant with forms of intellectual protection of their work and how to best protect it.

I found the section on trade dress particularly well-written, especially in light of the recent court decisions about Christian Louboutin’s ‘red-soled shoe’ marks.  Louboutin’s legal issues with his shoes to me highlights why designers should find a lawyer they feel comfortable with and ake sure their work is adequately protected.

Safe protection/safe inspiration: IP law for fashion designs – Lexology.

Copyright & Fashion

For anyone who has ever seen those mesmerizing red Louboutin soles ‘on the hoof’ knows, they really are a hallmark of the brand. I have many a memory of waiting for an  elevator in the Empire State Building and catching a flash of red out of the corner of my eye, and looking down saw it went with a pair of  stylish and sexy stiletto heels.  I actually think that unless you’ve experienced the Louboutin brand in such a fashion you may not understand why there was even the basis of a legal action between YSL and Laboutin over the color of a shoe sole.

If you’ve never seen the shoe ‘in action’, it almost doesn’t make sense that anyone would care about the color of a shoe’s sole – after all, it’s not even the most visible part of the shoe, right? Except that in this case, those trademarked red soles are so very characteristic that when you see a red-soled shoe, you automatically think ‘Louboutin’, even if on second look you realize that a. the soles aren’t the right red, and b. the shoes those soles are supporting are knock offs. It’s that first glance that supports the trademark, however, when you think ‘Louboutin’.

And the latter part of that statement is why it was so important for Laboutin to seek full legal protection for its trade marked red soles.  Prior to Sex and the City, those red soles (and even the name brand, Laboutin) would probably have only been known to a handful of shoe collectors and passionate Vogue readers.  But after Carrie Bradshaw’s widely viewed and passionate love affair with shoes, a much wider range of the population now identifies ‘red sole’ with ‘Louboutin’.

Personally, I couldn’t understand how the District Court could find that ‘color is functional in the fashion industry and cannot be protected as a trademark’.  While it is certainly true that color is an integral part of our industry and it would be a really horrific thing if one of the basic hues of the spectrum were removed from the designer repertoire, that’s not really what trademark and trade dress are saying.

There are so many cases out there of companies having trademarked colors that they protect rigorously – Hershey’s has their maroon they use on chocolate bar wrappers; IBM has IBM Blue; Coca Cola has Coke Red.  In all cases the formulation of the colors is specified down to the RGB/CMYK/HLS levels – as is Laboutin’s Red.  Coke isn’t suing Laboutin because Laboutin and Coke both use red, so it’s not really about the color, per se. It’s about trade mark – where you use the color – and trade dress. Companies spend years and millions of dollars building up their trademarks so they can become trade dress.

While red is certainly a commonly used color in the fashion industry, arguing the red adds to the functionality of a garment and therefore can’t be protected makes literally no sense. As a technical designer I have to scratch my head about this – it’s not like Laboutin is claiming that their red dye is somehow adding some new functionality to the sole – which would be ultra cool if it did, but it doesn’t. It’s like saying that Hershey’s wrapper color adds function to the wrapper (the WRAPPER is the functional part…not the COLOR).  Likewise, the sole of the shoe is the functional part – and Laboutin is not claiming the sole of the shoe as their trademark.  They’re claiming a specially dyed and color matched sole is their trademark.

I personally was delighted that the Second Circuit reversed the District Court’s Laboutin vs. YSL finding that color is functional in the fashion industry and cannot be protected as a trademark. It shows someone out there was thinking in a much bigger picture. Will the Second Circuit court’s finding suck for all the designers out there who want to make shoes with color soles? Only if you want to make red soles.

That means there are still literally millions of other colors out there you can use on the bottom of your shoes, and even trademark if you want to get into that game. And no big deal if you want to design a red T-shirt or dress. It’s not the color that’s in question. It’s the precise shade of the color applied to a particular part of a garment.

That of course leads up to the much bigger question of copyright. It will be interesting to see how the newest legal attempt, Bill S 3523, to provide copyright protection to fashion will succeed in Congress. But that’s a topic for another day.

Want to read more about Laboutin and YSL? Visit Lexology – they always have great ‘soundbites’ by actual lawyers.


Fashion, Technology…and Lace!?

A recent article in the Wall Street Journal about the resurgence of lace being used on the runways again sparked a thought about how lace has been influential in so many ways.  It’s astonishing really, when you think about it, since lace is the ultimate luxury fabric: too light and ephemeral to lend warmth or protection to the wearer, easily damaged, and the good stuff is quite expensive.

The production of lace was actually something that drove the development of a new technology that ultimately proved to have far-reaching consequences not just for fashion and the textile industry, but also for computing and technology.

Despite the apparel industry’s relatively laggard uptake of new technologies, fashion has actually had a long history of moving forward and being moved forward by emerging new technologies.  In fact, one of the earliest inventions that helped define computer science and computers in general was a machine designed for  the textile sector of the fashion industry, the Jacquard loom.

Invented by Joseph Jacquard in 1804-05, the Jacquard loom was a pivotal invention for both fashion and computing.   It proved to be the impetus for the tech revolution of the textile industry and an important step in the history of computing.  The Jacquard loom (which is actually a misnomer, as this invention is actually not a loom, but rather a head or an attachment that can be used with a range of different looms) was the first machine which used punch cards as a control mechanism.

After the ‘hanging chad’ incident in Florida during the 2000 presidential elections, we all know what punch cards are: pieces of wood or paper with holes punched in them, where the precise pattern of the holes contain data when read through a machine capable of reading them.  They are a form of data storage and have been used to store computer programs.

Like the voter ballots, the Jacquard loom also used punch cards that contained information, or data, about different lace patterns.  Each hole controlled a needle, threaded with up to 4 warp ends (or threads).  A set of punch cards might control as many as 400 needles, for a total of 1600 warp ends in a given textile, and the machine could make up to 4 repeats of the pattern across the weft.

By changing out the punch cards, a loom operator could change the lace pattern which the loom could produce.  This meant that looms suddenly had the ability to create many different patterns on the same loom, simply by changing out the punch cards.

This was an important advance for fashion, since in the past lace had been made primarily by intensive hand methods. With the Jacquard loom, instead of a lace maker creating only a few inches of lace a day, he could now create feet and even yards of it, in some fairly complicated patterns.

This was also an important advance for computing hardware.  The Jacquard loom had the ability to have its program of lace pattern changed by simply swapping out the punch card sets.  While the Jacquard loom machine did not perform computation using its punch cards, this is still considered an important precursor to what would eventually become the field of computer programming.

The invention of the Jacquard loom had a far-reaching impact on the use of lace in fashion, as it was suddenly more affordable.   There was a renewed interest of lace as a trim by the fashionable elite, and a greater number of people could wear the new machine-lace because it was less expensive than the handmade needle laces.