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

September is turning out to be a hot fashion law month, and we are only into week two!

Today, WWD reports Senator Charles Schumer (D., N.Y.) has once again introduced the Design Piracy Bill into the Senate. It is no secret that we here at the Fashion Law Blog are not fans of this legislation, and have dubbed previous incarnations of the bill, the Destruction of Affordable Fashion Bill. 

This time, we reserve judgment (kinda) as the exact text of what was introduced toady is not yet available, but we have no expectation that it will be any better than Schumer and crew's last five attempts.  But, we'll share it once we can get our hands on it and then we can all decide together.

In the meantime, one has to wonder WHY Schumer introduced this bill now?!  With elections rapidly approaching, Congress will only be in session about another two weeks.

Maybe Schumer is being passive aggressive - submitting the bill to please his generous contributing constituents, but knowing nothing will ever happen on it.  Win-Win, for him right?

Sigh.  Well, here's to hoping that Congress spends its Fall dealing with our economy, expiring tax cuts, fixing the deficit and avoiding a government shut down.  Otherwise, this will really be a September to Remember.

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Consumers beware.  The cost of clothing is about to rise.  Reasonably priced fashionable items will be non-existent and affordable clothing will be utilitarian and boring.  Why? 

The Innovative Design Protection and Piracy Prevention Act ("IDPPPA") was unanimously approved by the Senate Judiciary Committee yesterday and now moves into the Senate for a full vote.

Deceptively called the "fake fashion bill" by its supporters, this bill has nothing to do with Counterfeit goods or Knock-off goods, which are covered under trademark law and are illegal.

This bill, more appropriately called the Destruction of Affordable Fashion Bill, seeks to amend copyright law and will:

• put numerous small businesses that don't have $400,000 to spend on litigation out of business;
• cause 1.6 jobs to be lost in Los Angeles for every fashion job lost;
• severely disrupt the fashion manufacturing process;
• cause lenders to stop lending;
• increase expediently the work load of the federal judiciary -- the court that rules on copyright litigation;
• narrow your choice of clothes; and
• increase the cost of the few items you can buy by at least 30%.

Pretty scary right?

And legally, the Destruction of Affordable Fashion Bill will wreck havoc in the courts, tying up dockets (and your inventory) for years because: 

• it violates due process because designers are not required to file a copyright registration on their alleged "original design;" and  
• its has new, uninterpreted terms - like "substantially identical," "deliberate copies" and "independent creation."

just to name a few problems. 

And, yes, the trial lawyers i.e. the plaintiff's bar that work on contingency fees, support this bill.  Why wouldn't they?  There is no loser pays provision in the Destruction of Affordable Fashion Bill, so if a plaintiff files suit on a design they feel is original and they lose, they never have to deal with the economic consequences. 

So let's all give a big round of applause to the CFDA and Senators Charles Schumer, Orrin Hatch and our own Dianne Feinstein. 

When unemployment rises, your business collapses and the economy gets more depressed then it already is, you'll know where to send your thank you notes.

Related Fashion Law Blog Posts:

Why IDPPPA is going to KO the Business of Fashion

IDPPPA: How to SLAPP the Sting Out of Frivolous Litigation

IDPPPA will not prevent frivolous litigation

BREAKING NEWS: New Design Piracy Bill Introduced into Senate

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With the World Cup in full swing, street vendors hawking counterfeit products are out in full force. [Video]  Allegedly, the official FIFA suppliers are losing millions of dollars and South Africans are losing jobs because the official products are suppose to be manufactured in South Africa. 

According to the Dawn Media Group, South Africa's Counterfeit Goods Act makes possession of fake goods a crime which can result in a three-year jail term or a 5,000 rand (approximately 650 US dollars) fine per item found in possession.  This is in direct contrast to US law.  Here, only the sale of counterfeit products is a crime. 

I wonder if this difference will impact a potential buyer's decision?  Or will cost, $85 for an official jersey compared to $15 for a knock-off, a substantial difference given the standard of living in South Africa compared to the U.S, drive choice? 

As we have previously discussed, in fashion, unlike many other industries, the purchasers of counterfeit products usually know that they are buying a fake.  Even more interesting is a recent study that  show that 46% of all people who buy counterfeits end up buying the real thing.

It will be interesting to see how this one plays out.

photo credit: FIFA

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To end counterfeit week, I challenge each of you to examine your own attitude towards purchasing counterfeit fashion products, like purses, shoes or watches.

Earlier on this blog, guest author Biana Borukhovich, after recognizing views about the passage of the Design Piracy Prohibition Act ("DPPA") differ greatly from coast to coast, suggested that the difference could be caused by the annual amount of counterfeiting that each coast incurs.  Specifically, Biana wrote:

For example, in December 2009, New York City officials confiscated over $1 million in “knockoff” designer handbags, watches, and wallets in Chinatown.

In addition, roughly ten buildings along New York City's Canal Street housing over thirty counterfeit operators were shutdown for illegal sale of counterfeit items. On the other hand, this year, only four storefronts near Fisherman’s Wharf in San Francisco were closed down due to counterfeiting.

But after spending last week in NYC, I think Biana has it backwards.  Here's why: 

If you are accustom to seeing and buying fashion counterfeits, and you believe that doing so is ok, doesn't hurt your integrity, and doesn't really harm anyone, wouldn't that belief easily translate into your attitude towards using other designers products as inspiration?

Putting it another way, since copying or being inspired by other  fashion designs is common, accepted and is legal in the fashion industry, maybe this freedom informs consumers decisions to buy counterfeits? 

If consumers know that it it is ok to buy an ABS dress that is a "copy" of a couture gown, why is it wrong to buy the counterfeit Prada being offered by the street vendors?

And interestingly buying counterfeits is legal.  Selling them is not. 

So if attitudes towards copying and counterfeits are linked, wouldn't New Yorkers, like Diane Von Furstenberg and the other Council of Fashion Designers of America ("CFDA") members or Professor Susan Scafidi be more likely to think copying is ok?

What do you think?

photo credit: my blackberry so I apologize for the blurred images. 

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