Tag: Fashion Law

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Louis Vuitton Seeks Supreme Court Review to Resolve Purported Circuit Split on Trademark Dilution
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U.S. Supreme Court Rules that Cheerleader Uniform Elements May Be Eligible for Copyright Protection
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Fashion Law Newsletter – Spring/Summer 2016 Edition
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Fashion Law Newsletter – Autumn/Winter 2016 edition
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Fashion Law Breakfast
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Fashion Law – Spring/Summer 2015 Edition
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H&M Unsuccessful in Challenge to YSL’s Registered Designs for Handbags
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Sydney Fashion Law Breakfast – Thursday 15 October
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Designing Fashion: How to be Inspired Not to Copy
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Fashion Law

Louis Vuitton Seeks Supreme Court Review to Resolve Purported Circuit Split on Trademark Dilution

Louis Vuitton recently petitioned the U.S. Supreme Court to review a Second Circuit ruling that certain handbags are fair-use parodies of Louis Vuitton products, and therefore do not give rise to liability for trademark dilution by blurring. In its petition, Louis Vuitton contends there is a split of authority between the Second and Fourth Circuits regarding parody as a fair-use defense to dilution.

Louis Vuitton is the owner of famous trademarks “that immediately bring… to mind Louis Vuitton as the sole source of handbags and other stylish, high-quality goods bearing its marks.” My Other Bag, Inc. offers handbags with images of Louis Vuitton’s famous marks reproduced on one side, and the phrase “My other bag” inscribed on the back.

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U.S. Supreme Court Rules that Cheerleader Uniform Elements May Be Eligible for Copyright Protection

Yesterday, in a decision that will be welcomed by the fashion industry, the United States Supreme Court ruled that certain design elements of cheerleader uniforms may be eligible for copyright protection.  Star Athletica, L.L.C. v. Varsity Brands, Inc.  The Court held that, “a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.”  Justice Clarence Thomas authored the 6-2 majority opinion, addressing disagreement among lower courts as to the proper test for determining if certain design elements could ever qualify for copyright protection.

This case involved lines, chevrons, and colorful shapes on cheerleader uniforms. In finding that these elements could be covered by copyright, the appeals court below had identified nine different approaches that various courts and the Copyright Office had employed over the years to address “separability.” The appeals court fashioned its own test and found that the design features of Varsity Brands’ cheerleader uniform played no role in the overall function of the article as a cheerleading uniform, and the elements were separable from the utilitarian aspects of the uniform and thus eligible for copyright protection.

The Supreme Court affirmed.  Applying § 101 of the Copyright Act, the Court found that the decorations on the uniforms at issue could be identified as having pictorial, graphic, or sculptural qualities, and the arrangement of the decorations could be placed in another medium (e.g. placed on a painter’s canvas) without replicating the uniforms themselves.  Thus, the two-dimensional work of art fixed in the uniform fabric met both the separate-identification and independent-existence requirements of the statute. Importantly, the Court held only that the uniform elements are eligible for protection in concept; now the trial court must determine whether Varsity Brands’ specific lines, chevrons, and shapes are original enough to merit copyright protection.

Justice Ruth Bader Ginsburg concurred in the result, pointing out that the Court did not have to discuss the separability test at all because the designs at issue were not themselves useful articles, but rather standalone, two-dimensional pictorial and graphic works reproduced on a useful article.  Justice Stephen Breyer, joined by Justice Anthony Kennedy, dissented, arguing that even under the majority’s test, the designs cannot be perceived as separate from the cheerleading uniform.

Thus, although the majority offers some clarity about the proper approach to separability, the dissent demonstrates that analysis may yield divergent results.  The decision is likely to be embraced by fashion industry leaders and other garment design stakeholders for its recognition that certain garment design elements may be protectable under the Copyright Act.  K&L Gates will continue to monitor litigation in this area and provide updates.

A link to the opinion can be found here: https://www.supremecourt.gov/opinions/16pdf/15-866_0971.pdf

By: David Byer, John Cotter, Shamus Hyland and Eric Lee

Fashion Law Newsletter – Spring/Summer 2016 Edition

Fashion has always been a repetition of ideas, but what makes it new is the way you put it together.” – Carolina Herrera

Welcome to the latest edition of Fashion Law, this edition touches on issues that demonstrate the impact of world events and technological changes on all businesses.

Fashion Law gives you the latest updates on legal issues affecting the fashion industry.

Please click here to read the Spring/Summer 2016 edition of Fashion Law.

Contact: Lisa Egan

Fashion Law Newsletter – Autumn/Winter 2016 edition

By Lisa Egan

We are excited to bring you the next edition of Fashion Law, highlighting important issues at the crossroads of fashion and the law.

Fashion Law gives you the latest updates on legal issues affecting the fashion industry. This edition includes articles on how to set up your business in order to minimise risk, workplace bullying in the retail environment, examples of trade mark and copyright disputes by major fashion brands and also the very tricky industry issues of how thin is too thin for fashion models.

Please click here to read the Autumn/Winter 2016 edition of Fashion Law.

Fashion Law Breakfast

By Lisa Egan

Today we hosted our annual Fashion Law Breakfast as part of Virgin Australia Melbourne Fashion Festival’s business seminar series. Joining us on our panel to talk about issues such as copyright in images, defamation and making social media accounts the best they can be within the confines of the law, was renowned journalist and fashion commentator Patty Huntington. Over 100 attendees received our first edition of our Fashion Law Magazine for the year, soon to be released as an ePublication. If you would like to join our mailing list please email us on ipblog@klgates.com.

Fashion Law – Spring/Summer 2015 Edition

“Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, what is happening.” Coco Chanel

We are excited to bring you the third edition of Fashion Law, highlighting important issues at the crossroads of fashion and the law.

Fashion Law gives you the latest updates on legal issues affecting your industry. This issue includes the various awards and grants available to new and emerging fashion designers, as well as what to do if your promotional images are reproduced without your permission.

Please click here to read the Spring/Summer 2015 edition of Fashion Law.

H&M Unsuccessful in Challenge to YSL’s Registered Designs for Handbags

Fashion retailer, H&M has been unsuccessful in its application to the EU General Court to invalidate YSL’s Community designs for handbags. Community designs protect designs for up to 25 years in every EU Member State. In November 2006, YSL successfully registered two of its designs for handbags. H&M had applied for a declaration of invalidity for these two YSL designs arguing that the designs had no individual character.

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Sydney Fashion Law Breakfast – Thursday 15 October

How close is too close? Trends, inspirations and courts – where is the line between paying homage and knocking off someone else’s design?

K&L Gates invites you to our Fashion Law Breakfast on Thursday 15 October to explore the ins and outs of copying in the fashion industry, including tips on how to avoid getting into hot water and the legal options available to designers who discover that their creations have been copied. A panel of fashion industry and legal experts will discuss the role of trends in creating designs and address the difference between being inspired and being liable for copying.

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Designing Fashion: How to be Inspired Not to Copy

Earlier this year, K&L Gates hosted its annual Fashion Law Breakfast in conjunction with the Virgin Australia Melbourne Fashion Festival. A fantastic panel of both fashion and legal experts divulged tips on inspiring creativity in the fashion industry and combating copyists.

Following trend forecasts and drawing inspiration from the catwalks overseas is nothing new or particularly sinister. However, there is a clear distinction between drawing inspiration and copying.

Fashion brands need to have a culture that sets clear expectations when it comes to drawing the line between inspiration and copying. Creating something new and innovative needs to be part of a fashion brand’s modus operandi. Junior designers with their fresh approach and cutting edge design skills should be encouraged to work on hero collection pieces.

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Fashion Law

“The great thing about fashion is that it always looks forward.” Oscar de la Renta

We are excited to bring you the second edition of Fashion Law, highlighting important issues in the crossroads between fashion and the law.

From choosing brand names and protecting distinctive elements of your product and prints, to exclusivity agreements with retailers and protecting your brand online, Fashion Law provides you with valuable information at all stages of your journey, from kick-starting your business through to the runway and beyond.

Please click here to read the Autumn/Winter 2015 edition of Fashion Law.

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