Fashion Law : Fashion Lawyer & Attorney : Fox Rothschild Law Firm : Licensing, Intellectual Property

In a position paper published by the California Apparel News on September 24, 1010, Kevin M. Burke President and CEO, American Apparel & Footwear Association ("AAFA") said:

The IDPPPA also dramatically curtails the opportunities for the industry to become mired in frivolous lawsuits. Unlike previous attempts at design-piracy legislation, this bill establishes a clear system to both initiate and defend against an infringement claim.

To discourage legal intimidation and unnecessary lawsuits, the legislation creates a heightened three-step pleading process in which the burden of proof lies completely with the plaintiff. A plaintiff must demonstrate that the design in question is protectable, the offending design is substantially identical and the infringer had access to the protected design. In other words, this improved pleading requirement stops mischief before it even hits the courtroom.
 

As a seasoned fashion litigator, I can tell you that Mr. Burke is just wrong.  There is nothing the IDPPPA pleading requirement, heightened or not, that would deter a plaintiff from suing that believed that its design was original. 

Lay people tend to forget that pleading does not equal proving.  You prove to a jury or judge, at the end of the litigation process. 

The purpose of pleading is to give the other side enough information so they know why you are suing them.  It occurs at the very beginning of a lawsuit and if you don't plead well, judges almost always let you try again.

Again, if I were a proponent of this bill, and I really wanted it to deter frivolous litigation, I would include ANTI-SLAPP like procedures, which significantly, make the Plaintiff pay for the Defendant's attorneys fees if the Defendant prevails.

But, my guess is that the CFDA and the AAFA aren't worried about defending suits, as their constituents will be the ones suing.

Only time will tell.

ps -- if you want to join me for a live discussion on the current state of Fashion Intellectually Property Law and IDPPPA, I will be presenting at GlobalTex on September 29, at 'Your Legal Lifeline - Specialists Required! '

The panel, which is from 4-6 in the West Hall, Hall A, is preceeded by a wine tasting starting at 3pm - fun!!  Hope to see you there.

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As you know, I am not a fan of the proposed Innovative Design Piracy Protection and Piracy Prohibition Act ("IDPPPA").  IDPPPA is something that sounds good on paper and lures in the public, like Johnnie Cochran did with OJ's glove.  And then, before we know it, the jury will conclude that OJ Simpson is not guilty, despite the DNA evidence.  Best.closing.argument.ever.  (and you should read the book)

There is no debate that counterfeits are illegal.  But there is no such thing as "original design" in fashion.  And without originality, nothing truly can be a copy.

If you read last week's WWD you were able to see where the inspiration of s/s 2011 came from.  If you watch Project Runway you can see contestants are given look books and style guides to draw inspiration for new creations.

But I digress. 

The proponents of IDPPPA claim that this third version protects against frivolous lawsuits by requiring the plaintiff to plead with particularity.  Nonsense.  As any seasoned litigator will tell you, this requirement will only increase the cost of litigation. 

Now, if I were a proponent of this law, and I really wanted to stop frivolous litigation under it, here is what I would do:

• I would require all fashion designs be registered with the Copyright Office, and have them indexed, examined and searchable, just like Trademarks currently are; and
• I would incorporate Strategic Litigation Against Public Participation-like (SLAPP) procedures to afford a falsely accused Defendant an opportunity to get out of the lawsuit quickly and for a fraction of the cost of regular litigation.

(note, I am about to sound like the Fashion Litigator I am, so if this stuff makes your eyes glaze over, I am warning you to stop reading now.....)

Most of you are probably familiar with the Trademark Office and can related to the suggestion in point 1 above.  SLAPP, on the other hand may be a foreign concept so I am going to give you a bit of an overview.

SLAPP was enacted by the California legislature to protect the rights of free speech of environmentalists and other "little people" fighting big oil companies, developers and such.  The government found that Big Businesses were using lawsuits to abuse protesters by suing them for a variety of free-speech related reasons, usually under the guise of slander or libel, merely to scare the protesters into going away instead of having to spend tons of money defending themselves personally in court. 

So, the legislature devised a way for the small fry to get out of frivolous litigation fast and easily - it allowed them to yell "SLAPP," and then file an ANTI-SLAPP motion to reveal the true motivation of Big Business - squashing free speech with their large litigation budgets. 

But then, to the dismay of (some) the judiciary and (most) of the legislature, SLAPP morphed at the hands of crafty attorneys and expansive-reading judges, and became this neat trick that litigators tend to over use for all types of causes of action not just those relating to free speech, and it has spanned further legislation like SLAPP-Back motions. 

Yes, it is a bit of a hot mess, but some of its provisions can be useful in strengthening the proposed IDPPPA legislation.  Here's how:

1. Allow a defendant to file an "ANTI-SLAPP" type motion within 20 days of service of a fashion design copyright complaint.  In this motion, a defendant would essential plead that the plaintiff's "fashion design" is not original and doesn't warrant copyright protection under the act.
2. Once Defendant's motion is filed, all discovery is stayed until the ANTI-SLAPP motion is ruled upon by the Court.
3. Then, the burden shifts to the Plaintiff.  To proceed with the litigation, in its response to the ANTI-SLAPP, the Plaintiff must prove that its Fashion Design is original within the meaning of IDPPPA, and Plaintiff has substantial probability of prevailing on the merits of its case.
4. If the Defendant wins, the Plaintiff must, like under SLAPP, pay for ALL of defendant's legal fees incurred in filing the ANTI-SLAPP motion.  And a Defendant may be award punitive damages if the Court finds the Complaint frivolous.  (If the Defendant loses, the case proceeds as usual and the Plaintiff only gets their fees if the Defendant's ANTI-SLAPP motion was frivolous.)

If we are going to be stuck with this terrible new law that will put numerous companies out of business, and raises the cost of clothing for all consumers, don't you think America's manufacturers deserve as much protection as the environmentalist? 

Both are endangered species, right?

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