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.

Something Completely Visionary: Fashion, Tech, Innovation, Part 6

Armed with our initial vision of a base garment that could essentially play videos or images on its surface, let’s explore some of the challenges that need to be addressed before this could become reality.

Last time we talked some of the safety considerations of such a garment.  This time, let’s discuss some additional safety considerations, namely the circuitry for such a garment.

A ‘video garment’ such as we’re discussing is nothing more than a large play-back device.  But in order for it to actually work, it needs to both receive data to actually play back on its surface, and it needs power to perform the playback.  So the garment needs to be able to conduct two things in its circuitry: data, which must be uninterrupted, and power, which must be controllable for both on and off states, as well as possible rates of change.

Any circuitry which is used for playback must be uninterrupted, and must not lose connection when the body moves and changes under it.  As the garment follows the body contour and movements, the circuitry cannot be disrupted or the entire image will be disrupted, often in strange ways.

What sort of materials might be used to ensure that dataflow remains persistent? There are currently a range of materials which are used to conduct power/data, including fiber optics, thin metal threads (usually copper), and of course, metallic, printable inks.

Each of these materials has advantages and drawbacks: fiber optics are relatively inexpensive, being an ‘older technology’, and can be easily handled just like any other thread and woven into a garment.  It is already used to carry optical data and lighting, and lovely textiles have been created using fiber optics.  Some drawbacks to fiber optic textiles are that they are itchy for a wearer; if an optical thread is bent, it loses signal; and there is now easy way to connect up optical threads from different pieces of the garment (such a thread would need to be knitted into a one-piece tubular garment, which would change the addressing properties of the garment to playback imagery or video).  Fiber optics are largely inert, so a wearer wouldn’t need to be concerned about the material having any dangerous chemicals being off gassed onto their skin. Safety considerations would be relatively minor other than the possibility of the fiber optics bending and breaking and perhaps scratching the wearer.  Seams would need to be sealed carefully to prevent wearers from being hurt by the sharp cut ends of the optics.

Thin metal threads have also been used to carry data and power.  Very fine threads of copper metal are created, and simply woven into the textile just like any thread.  Like the fiber optic thread, it too shares some of the same issues of not being able to readily connect the threads between two pieces of the garment, and while the copper thread would be softer and not prone to shattering, it might still be a scratchy experience for the wearer.  Moreover, such a garment would need to be cleaned very carefully, as copper is reactive to many substances, and over time, it can oxidize, which reduces its effectiveness as a conductor.  Lastly, it would need to be sealed in some way to prevent any voltage leaks or verdigris stains from the copper oxidizing.

The third sort of circuitry would be the use of metallic inks.  This is currently being used effectively in the toy and home furnishings industries, and can be easily printed onto a textile base.  Unlike the woven in fiber optics or metallic threads, metallic inks can be printed on a garment after it has been largely constructed. This means that there is a complete circuit, without gaps at the seams which need to be connected.  Moreover, the metallic inks can be overprinted by an impermeable, protective layer of polyvinyl chloride or polyurethane, which prevents seals the printed circuitry behind a protective layer that prevents leakage of voltage, data, or harmful chemicals from the ink itself.  While this may sound great, there are still safety considerations, as printing metal-based ink often produces toxic fumes which need to be handled carefully.  Metallic inks haven’t been in use long enough to know how they respond to laundering, and they have not been extensively used on a range of product classes, so it is unclear how they will wear or respond to cleaning considerations.

It is possible, that with something like a flexible OLED for the base material, that the circuits could be designed to be embedded into the base material, which would remove many of the safety considerations and health hazards that a woven or printed circuit would have.

Next time: powering up the garment.

Something Completely Visionary: Fashion, Tech, Innovation, Part 5

Armed with our initial vision of a base garment that could essentially play videos or images on its surface, let’s explore some of the challenges that need to be addressed before this could become reality.

Last time we talked about comfort as it pertains to the make and manufacture of the actual garment.  This time, let’s discuss safety considerations of such a garment.

There are several areas of importance to consider with such a garment: first, of course, is the safety of the actual material used for the base garment; secondly is the safety of the circuitry; third is the safety of the power supply; and fourth is something which is often ignored by both apparel and accessories designers, the ergonomics of such a garment.

Let’s take these one at a time.

The actual material used, by its nature, will be very new to the industry.  Since it is unclear if it will something like a flexible glass, or something like a giant OLED, it’s difficult to assess the precise nature of safety concerns, but some things will always remain a concern: does the material off-gas at any point in its development or wear cycle? By this we mean are any sort of noxious fumes released by the material?

We all know about the toxic side-effects of formaldehyde and other chemicals used in various ways in the apparel industry.  We all also know how horrific a textile warehouse can smell from all of the other chemicals used in developing just the textiles alone (bleaches, aldehydes, and so on) most of which will give the user anything from a mild headache to an allergic response to, with enough exposure, various long-term health issues.

Any new material used in this way should definitely address some of these considerations, and be as inert as possible. Materials in the ware house are bad enough, with the build-up of fumes and other gaseous effluent, but covering a wearer’s body, and being exposed to the wearer’s skin presents even larger challenges to keep the wearer safe.

Beyond simple storage considerations, how would such a new material be handled, cut, constructed, packaged, and eventually, shown? What sort of health concerns might we need to have beyond the obvious ones of the material shattering easily: would this create splintering or particles which a worker would need special protective tools and garments to avoid being cut or injured?

And what about the wearer?  Would a garment made from a ew base material capable of playing back images or videos be shatter-resistant? How would the wearer be protected from possible health considerations, and how would such a material be developed to ensure the wearer’s safety?

If it possible, even, to build safety features into the material, e.g., to provide it with micropore filtration devices, to filter out pollutants and harmful radiation like ultraviolet and other wavelengths?

A garment that would enable an increased level of health and safety for the wearer would provide an exceptional boon to the wearer, who could be both stylish and safe at the same time.

Next time, we’ll look at other safety considerations.


Something Completely Visionary: Fashion, Tech, Innovation

We recently checked out the marketing video released by Corning, A Day Made of Glass.  We admit it, we watched with a degree of ‘wow’ factor and more than a touch of cynicism.  For example, in our experience most people don’t live in pure white houses because they are impossible to keep clean without an army of servants, and we didn’t see any discussion of glass with built-in-cleaning, which is what we all really want.

However, we digress, because there were a lot of great ideas being presented there, but what we didn’t see, and what we’d really love to see (besides self-cleaning/no fingerprints), was a really innovative use of some of their products.

For example, they showed flexible, portable display glass in several really cool product concepts, but we didn’t see it used in a way that we think would be a real killer app.

Putting our visionary thinking cap on, we think that flexible display glass would make an awesome raw base garment that wearers could use to ‘play’ new garments onto, thereby having new styles as often as the wearer would care to.  It would be an interesting mash up of virtual goods and physical reality.

Think about it: with a simple base garment capable of playing back any garment loaded into it, a wearer could attend New York Fashion Week (or Brooklyn Fashion Week, for that matter) in person or in a virtual immersive environment, see a garment of outfit they like, and with a simple click through their desktop or mobile app, purchase the outfit they see and wear it shortly thereafter.

They could obtain a copy of the clothing style for both their physical base garment and their avatar, so they could wear their desired style wherever they thought it appropriate.

Moreover, with the magic of a good couteriere’s eye, the wearer would not only be able to have the newest and latest style, but they’d ‘fool the eye’ reducing their overall apparent physical mass by using slenderizing lines and careful graphic trompe l’oeil to disguise or enhance various physical features (think Predator’s ability to disguise itself, only with style).

There are still some barriers between our vision, and current reality, which need to be overcome, and which  we’ll cover next time.

Jason D. Arnold, Attorney at Law, Joins Fashion Research Institute’s Black Dress Technology as In-House Counsel

New York, NY March 21, 2011 – Jason D. Arnold, Attorney at Law, Joins Fashion Research Institute’s Black Dress Technology as In-House Counsel

Fashion Research Institute CEO, Shenlei Winkler, announces that Attorney Jason Arnold has joined the FRI team as in-house counsel for Black Dress Technology, a wholly-owned subsidiary of FRI. Mr. Arnold is a 2007 James E. Beasley Temple University School of Law Graduate. Admitted to practice in Pennsylvania and to the U.S. District Court of the Middle District of Pennsylvania, he was an active member in the American Bar Association serving on committees in the Intellectual Property and the Science and Technology divisions.  He is also a member of the Pennsylvania Bar Association.

Furthermore, he has worked on copyright infringement litigation, including assisting in writing a certiori petition for the United States Supreme Court.  He has worked on trademark registration and infringement cases.

“I am very pleased to be joining Black Dress Technology because of their visionary use of immersive technology, something I personally believe will be integral to our professional and personal lives,” says Arnold.

“We are excited about having Mr. Arnold join the Black Dress Technology Team.” Says Shenlei Winkler, CEO of the Fashion Research Institute. “We think his experience in virtual worlds and particularly his emphasis in virtual goods and content will make him an integral part of the Fashion Research Institute team, focusing particularly on areas of content licensing from design houses in the apparel industry to virtual goods development for game development.”

Fashion Research Institute has been leading the effort to defining legal templates for users of decentralized OpenSim-based virtual worlds, including End User Licensing Agreements and easy-to-use content licensing templates.  Mr. Arnold served with distinction on the OpenSim Legal Steering Committee formed by FRI in 2009.


About Fashion Research Institute, Inc.: The Fashion Research Institute is at the forefront of developing innovative design & merchandising solutions for the apparel industry.  They research and develop products and systems for the fashion industry that sweepingly address wasteful business and production practices. Shenlei Winkler’s work spans both couture and mass-market design and development for the real life apparel industry. A successful designer, her lifetime sales of her real life apparel designs have now reached more than $70 million USD, with more than 25 million-dollar styles in her portfolio. Her couture work has appeared extensively on stage and movie screen.