While still an emerging technology, more companies are implementing blockchain technology to manage supply chains, track goods, prevent counterfeiting, increase security, and ensure traceability. In a recent survey of global leaders, by auditing and financial services company KPMG, 48% of respondents stated they believe it is highly likely that blockchain will change the way their companies do business over the next three years, and 41% stated their company intends to implement blockchain technology during the next three years.Read More
“People will stare. Make it worth their while.” – Harry Winston
Welcome to the latest edition of Fashion Law. In this edition we review the Australian Government’s measures to tackle modern slavery, a New Zealand trade mark opposition highlighting the importance of trade mark watching services, superannuation payments for full time, part time or casual workers, protecting brands in international markets, and the changes to parallel importation laws.
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.
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
“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
On 31 October 2016, the U.S. Supreme Court heard arguments in the ongoing dispute between Star Athletica LLC and Varsity Brands Inc, two major designers and manufacturers of cheerleading uniforms. In what could be considered a bizarre mash up of early 2000s films “Bring it On!” and “Legally Blonde”, the two companies are involved in a stoush as to whether or not the two-dimensional designs of coloured stripes and zig-zags that are applied to cheerleading uniforms can be protected under US copyright law. My U.S. colleagues John Cotter and Shamus Hyland previously discussed the Sixth Circuit Court of Appeal’s decision in this matter here.
It will come as no surprise to readers that U.S. and Australian laws differ in many respects and this is particularly the case when it comes to copyright and designs laws.
In Australia, fashion designers may have recourse to the Designs Act 2003 (Cth) and/or the Copyright Act 1968 (Cth) depending on whether or not they are looking to protect two-dimensional (prints, images etc.) or three-dimensional (cut, shape, fit etc.) designs and how they intend to exploit the designs.
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.
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 email@example.com.
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.
K&L Gates hosted a panel of experts, featuring David Briskin (Executive Chairman, sass & bide and Director, VAMFF), Rachel Smith (Partner, Deloitte Touche Tohmatsu) and Jol Rogers (Partner, K&L Gates), at its annual Fashion Law Breakfast held as part of Virgin Australia Melbourne Fashion Festival. Read More