Do Alexander McQueen's Alien Shoes Need to Become a Trend To Have Intellectual Property Protection?
Lately, there has been much talk about trends - how they are started and when they reach a critical mass called the trend tipping point. I think the next trend will be Alexander McQueen's "alien shoes," shown during his Spring 2010 runway show that included a performance by Lady Gaga (maybe because they remind me of the toe shoes of my youth).
I am not alone. Grazia Daily reports that a McQueen spokesperson stated:
"We've had lots of people showing great interest in the show shoes. . some of the callers are also looking 'to buy them as art pieces'. . .[and] the process used to create the Alien shoes is very innovative and protected by copyright."
I have two questions: (1) how can the "process" to create shoes be copyrighted? And (2) when will this trend trickle down to my price range so I can get a pair?
As for the first question, copyright protects the original expression of an idea, whether literary, artistic, commercial or otherwise; it does not protect the actual process of assembly or outward appearance. Clothing and shoes are not currently protected under copyright law because they are useful articles. Fabric designs, however, generally have copyright protection. So I wonder how McQueen can claim a copyright in the process of developing his new shoes. More likely, he is trying to protect the process under patent theory. Any thoughts?
As to the second, it might be a awhile because Alexander McQueen recently sued Steve Madden for "copying" his "Faithful" booties on a trade dress theory. As a result, a company may think twice before using McQueen's shoes as inspiration.
When commenting on McQueen vs. Madden, I doubted McQueen would succeed because he wouldn't be able to prove secondary meaning. Maybe with the "Alien Shoes" shoes, McQueen takes one (wobbly) step closer to victory.
Can this process even obtain a patent? These basically look like Dutch clogs with high heels!
At best, the spokesman is confused about IP. My guess: Applying for a *design* patent (http://www.uspto.gov/patents/basics/index.html#design).
Perhaps I might argue that it is not even patentable pursuant to the nonobviousness standard!
Great blog! I interviewed with you in September and thought I'd stop by the site to see what Fox Rothschild was up to. This is a wonderful idea!