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.