Technology, technology, technology. It is all we hear and read about, and whether we like it or not, technology is rapidly altering the world around us. Some are completely intrigued by it and some begrudgingly adapt to it in fear of falling behind the rest of society. Now you are probably wondering what technology advancement has to do with fashion law, and on the surface it may seem that technology does not directly affect the fashion industry. However, technology developments such as 3-D printing do affect retail products in ways that lie deeper than the surface of the finished products.
On April 11, 2012, the Department of Commerce released a report that focused on the broad range of industries that benefit from IP, both directly and indirectly. According to Law of Fashion, ‘the report will be used as a tool to help press for intellectual protections in trade negotiations and provide supporting data for the administration’s new International Trade Enforcement Agency, which could bring cases against countries where counterfeiting and digital piracy is rampant.” IP is a key component in our economic growth. It comes as no surprise that IP-intensive industries support the jobs of approximately 40 million workers because the impact of copyright, trademark, and patent protection is inevitably enormous. The Obama Administration’s focus on promoting innovation can trigger a successful, competitive, international market, and by enforcing and protecting IP rights, these IP related industries can continue to support these jobs and contribute to about $5 trillion to U.S. domestic product. The report summary stated, “Without this framework, the creators of intellectual property would tend to lose the economic fruits of their own work, thereby undermining the incentives to undertake the investments necessary to develop the IP in the first place.” Within our Case Clothesed blog, we have seen countless numbers of lawsuits in the fashion industry where creators of IP fight to protect their work so that others cannot benefit off a work that isn’t theirs.
The report identified some of the most IP-intensive industries that use copyright, trademark, and patent protections the most extensively. Electronic shopping & mail-order houses, footwear manufacturing, and clothing stores were among the top trademark-intensive industries with top 100 global brands in 2011. It is clear that the fashion industry thrives off of innovation and incentives to invent and create. While the fashion world is only a mere portion of the IP market, this report puts into perspective just how much IP protection affects commerce throughout the economy.
The full report can be found here.
Sacha Baron Cohen is known for his notorious role in the movie Borat. Despite the movie’s positive reception by some and outright rejection by others, many can simply agree that one of the infamous scenes of the movie was where he wore an extremely unique, and albeit revealing, one-piece swimsuit. Apparently someone from the U.S. Patent & Trademark Office remembered this swimsuit from Borat and used this reference to reject a patent application for a “Scrotal Support Garment.”
Inventor Donald R. Quinn first filed an application to patent this apparatus in 2009. According to the Hollywood Reporter, Quinn described his invention as “support devices for male genitalia, and particularly to a scrotal support garment that provides support for the scrotum for patients having ailments or medical conditions affecting the genitalia or groin in order to relieve pain or discomfort.”
Some will say Paris Hilton is a trademark-licensing phenomenon by lending her name to a wide range of products from perfumes to shoes to her most recent endeavor-watches. However, this latest endeavor has become very problematic for the heiress. According to Perez Hilton, fine jewelry and watch designer de Grisogono has filed suit against Paris Hilton Entertainment alleging patent infringement of one of their watch designs. The particular watch has been sold by the company since 2007 and is named “Novantatre” which is Italian for “93” referring to the prominently seen “9” and “3” on the watch’s face. According to IPtrademarkattorney.com, de Grisogono applied for and was granted U.S. Patent Nos. D596,052 (“the ‘052 patent”) and D627,673 (“the ‘673 patent”) to protect their design. The ‘673 patent relates to the ornamental design of the watch dial, including the particular positioning of the “9” and “3” on the face of the watch. The ‘052 patent on the other hand, covers the square-shaped design of the watch. De Grisogono is accusing the Paris Hilton-branded “Coussin” watch of copying those same protected design elements that are covered by the two patents.
Here is an update to my previous post about the legal battle between the two big names in invisible braces:
ClearCorrect, LLC. responded to the allegations made against the company by rival company Align Technology, Inc., the creators of the Invisalign product. According to a press release posted by MSNBC,
“I never imagined that ClearCorrect would be sued for making a product too affordable for doctors and patients,” said Dr. Willis Pumphrey, ClearCorrect founder and chairman, and a practicing Houston dentist. “We’ve simply created a business model that supports our purpose of making clear aligners more affordable. This suit only further demonstrates how out-of-touch Align has become with the needs of doctors who prefer superior and more affordable products for their patients.”
According to a statement given by Clear Correct’s lawyer, Mike Meyers, “In previous litigation against Ormco, a federal court invalidated several of Align’s patent claims.” Meyers goes on to say, “ClearCorrect will begin its defense where Ormco left off and ask the federal court to invalidate even more of Align’s patent claims — thereby opening the market to all who, like ClearCorrect, may offer superior and more affordable products for doctors and patients.” So the suit proceeds, we’ll see who else joins in the defense. Thanks to Anthony Penketh for pointing me to this article.
Remember when you had to wear those unsightly metal braces? I had to, twice. By the time “Invisalign” came out, I was already done with my two-time stint, and although a little skeptical, I wished that I had been given the option of clear braces. According to MSNBC, on Monday, February 28, 2011, Align Technology, Inc., the company behind the invisalign clear braces, filed a patent infrigement suit against ClearCorrect, Inc., alleging that ClearCorrect infringes upon eight of Align’s patents by making, offering to sell, and selling its clear aligner therapy systems. According to the company’s website, Align calls itself the “pioneer[s] [in] the invisible orthodontics market” with the introduction of its Invisalign products in 1999. ClearCorrect’s website claims that its product is the “clearest option”, and in a comparison chart, the company distinguishes its aligners by stating that they have a “smooth surface finish [which] withstands clouding from wear” and adds the products are “minimally invasive”. Align however doesn’t see the difference.
According to a press release from the company, Align claims that ClearCorrect infringes upon eight Align patents through the production and sale of ClearCorrect aligners. The patents in question cover a wide range of Align’s processes and include patents previously challenged and validated by the USPTO through a re-examination process. Align is seeking monetary damages and injunctive relief against further infringement.
In an additional state action filed against ClearCorrect, Align argues that ClearCorrect engages in unlawful business practices, specifically the unlawful offering and selling of its products at prices below ClearCorrect’s average total cost of producing and distributing the products, therefore damaging the marketplace for clear aligner systems. Align alleges these practices are in violation of the California Unfair Practices Act, California Business and Professions Code § 17043, MSNBC reports. Roger E. George, Align’s vice president and general counsel stated, “we will take all necessary actions to protect Align and its shareholders from unlawful competitive practices, whether they come in the form of infringement of our intellectual property rights or in the form of disruptive and damaging business practices.” It seems that Align presents a strong case, we will see who prevails.
It’s not very often around here on CaseClothesed that someone brings up patent issues. The fashion legal world involves some hot topics in copyright and trademarks, but we don’t ever hear too much about patents.
On that note, I have something for you hot off the presses: Estée Lauder is being sued in U.S. District Court (Southern District of Texas) for patent infringement by Belfer Cosmetics, LLC. The owner of Belfer Cosmetics is a New Jersey inventor who created an anti-wrinkle compound that uses the armella oleracea plant.
The plant, which many dentists know as the “toothache plant” for its ability to numb toothaches, provides an extract that has a Botox-like effect on facial wrinkles. Belfer was issued patent number 7,566,646 for the compound in July of 2009 and claims that Estée Lauder has willfully and deliberately been infringing his rights since then.
Remember the 2015 of “Back to the Future” filled with hover boards and flying DeLorean time machine? Well, as the date is approaching, Nike has filed a patent for Marty McFly’s Nike Air Mag sneakers from “Back to the Future II”. The patent is claiming the technology to automatically lace up the shoe at a touch of a button. So maybe in a few years, our world will look much like Marty’s in 2015 – though I doubt Jaws 19 will be in Holomax Theaters.
There is a love of fashion, and then there is a love of shoes. Footwear is a major market within the fashion industry, with an estimated $44.4 billion dollar market in 2007. Of course shoes serve a utilitarian purpose, but it can be more often than not that before you step one foot out the door, you think beyond the function of the shoe you’re going to wear. The style of the shoe may be as equally as important as its function. So what kind of intellectual property protection can a shoe designer get for their creations? Each week I’ll be sharing some examples of how intellectual property law can help shoe designers give a swift kick to copycats. Click on the “read more” for this week’s installment.