Anyone in favor of the Innovative Design Protection and Piracy Prevention Act needs to read the recent ruling in Express v. Forever 21. In that case, Express claimed that Forever 21 infringed on both its copyright in a plaid print and its tradedress in 4 pairs of shorts and a jacket.
Express lost, as it should have, as its copyrights were improperly filed and more importantly, it's tradedress claim failed because Express could not prove secondary meaning, a very high standard as we have often discussed.
Sitting here today, I wonder if this case foreshadows what awaits us if IDPPPA passes?
In this matter, we have one large company suing another, because it thought its plaid jacket and shorts were so distinctive that consumers associate the item (ie the jacket or shorts) with the supplier (ie Express).
Here the Court note that if it were to accept Express' arguments:
"virtually every garment Express sells has secondary meaning. Unfortunately for Express, secondary meaning is not so lightly bestowed."
What about "originality" under the new IDPPPA?? Will Court's look, like this one did, to the designer's testimony about the creation process and look for documentation supporting that process?
If your designers use trend reports, magazines, look books or runway shows as inspiration, will you be liable for copying? Likely.
Will large company's sue because they think their non-distinctive design is original? Probably.
And could they win? Maybe -- we'll have to see which way the fashionable judiciary's gavel rolls.
photo credit: shoppingblog.com