It will come as a surprise to no one that I don’t know thing one about fashion or the fashion industry. In fact, I recently suggested to my wife that she start a blog called “Things I Make My Husband Wear” that would chronicle her efforts to teach me about the importance of clothing and turn me from someone who looks like a shiftless farmhand into a professional adult. Time will tell if she decides to take on this monumental endeavor.
But even I know when something strange is afoot at the Circle K*, and the month of September has seen the rumblings of a shift in the way the fashion industry operates, as designers scramble to protect their work in ways that have historically been off-limits. A few weeks ago, my friend Lauren sent me this link explaining how popular yoga-pant trafficker Lululemon is suing Calvin Klein for infringing its patent by copying its “Astro” pant design; specifically, the lawsuit alleges that Calvin Klein ripped off the Astro’s waistband as well as two other design elements.
Here are the pants in question:
The lawsuit is surprising, since copycatting in the fashion design industry is so generally accepted. In the fashion world, suing a copycat over patent infringement is uncommon because design patents are so hard to obtain in the first place and even harder to protect. There are two kinds of patents: Design patents which protect “original and ornamental design” and utility patents which are far more common and protect physical inventions that possess some level of usefulness. [Copyright law doesn't apply here since copyright protects forms of expression, whereas patent law protects items that are functional.] So why are design patents so hard to get in the fashion world? According to attorney Adrian Pruetz, “[i]t’s very hard to come up with something that’s new and that hasn’t just been part of the clothing vernacular.” After all, everyone wear some variation of pants, shirts, and shoes, and finding something unique is difficult because the history of clothing design extends back for over a thousand years.
The copycatting has gotten so out of control that NY Senator Chuck Schumer sponsored a bill** that would provide some intellectual property protections for designers. The bill, which just passed out of the Senate Judiciary Committee last week, would aim to protect fashion designs that are unique, distinguishable, non-trivial, and non-utilitarian. Schumer, of course, has some selfish reasons for sponsoring this bill: New York is considered by many to be the nation’s fashion capital, employing over 200,000 people in the industry, so this bill is as much about protecting jobs as it is about protecting patentable innovation.
Enough of the news, here’s my take: I’m all for the Schumer bill and any reasonable patent protections for fashion designers in general. A running theme in this blog is my support for protecting the work of artists, and I see no reason to deviate from that now. But some people have argued that design patents are more trouble than they’re worth and should be limited or even abolished. Ilse Metchek, President of the California Fashion Association, says ”[t]his whole notion that you’d grant a patent to anyone who adds a seam or two to a waistband is quite problematic. It’s only going to create more litigation, and that’s hardly something the fashion industry needs more of.” I can see her concern. Clothes are a necessity of life and if you permit designers to repeatedly sue other designers for infringement, you affect not just other fashion houses, but literally everyone. Clothes would become much more expensive and only the companies who could afford to withstand lawsuits would survive. That would stifle artistic expression and innovation. Bad medicine indeed.
Which is why the Schumer bill is a good start: its patent protections are very limited and would only extend to designs that are extremely unique and distinguishable. Furthermore, the protection would only last for three years from the date of publication, would provide certain liability limitations (such as no liability for someone who copies a design for home use only), and would force plaintiffs to plead detailed facts in their initial complaints in order to limit frivolous lawsuits. Designs that predate the bill’s enactment would not be eligible for protection and would thus be public domain. The entire bill smacks of reasonableness, which frankly means that everyone will hate it. But the bill is designed around an industry that is built on copying others and it recognizes that reality. In my opinion, it’s a good way to let people protect their work, while still allowing room for copying designs not unique enough for protection.
As for the Lululemon/ Calvin Klein row, I won’t debate the merits of the case here since I haven’t seen the court documents. I will say that Lululemon is clearly making a stand here against Calvin Klein, Gap, and any other retail chain that threatens its business. I have no dog in this fight, but there are plenty in the fashion industry that do. It should be interesting to see what happens.
* Sixty quatloos to the person who gets this reference. Please state your answer in the comments section below.
** Thank you to my lovely wife for pointing out the existence of this bill!