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

I said it before and in response to Bloomberg Law's interview of Professor Susan Scafidi [Video] I will say it AGAIN:

IDPPPA will not prevent improper litigation.  Period.

Any argument that the "Heighten Pleading Standard" will prevent improper suits i.e. suits based on a designer's belief that their design is unique or original, is just nonsense, or a red herring as we lawyers call it.  Ask any litigator, not just a fashion litigator like me, and I promise you they will tell you the same thing.

I am seriously disturbed by the Bloomberg Law interview and you should be too.  Why?

• Professor Scafidi's comments - did she really say "elements" of Diane Von Furstenberg's wrap dress would get protection under IDPPPA or the Destruction of the Affordable  Fashion Bill?;
• It was 15 minutes and only presented one side;
• IDPPPA will be very costly to fashion brands because litigation costs will have to be factored into the price of clothing, increasing the price;
• It will cause less choice in the market place.  All designers need to do is "tweak" a garment compared to the original, says Scafidi.  What does that mean?
• It will flood the courts with litigation - Americans, unlike the rest of the world are KNOWN to be litigious; and
• By the way Professor Scafidi laughed at the suggestion of addition of loser pays langauge into the bill.

The only good thing about the interview? Professor Scafidi looked great!  Loved her necklace.

Repeating all the reasons why the Destruction of Affordable Fashion Bill is a really.bad.idea would take too long, but you can read more at the following related posts:

BREAKING NEWS: New Design Piracy Bill Introduced into Senate

Why IDPPPA is going to KO the Business of Fashion

IDPPPA: How to SLAPP the Sting Out of Frivolous Litigation

F21 Defeats Express: an IDPPPA Preview?

IDPPPA will not prevent frivolous litigation

The "Destruction of Affordable Fashion Bill" or IDPPPA gets one step closer to becoming Fashion Law

Senator Feinstein Puts the Breaks on The "Destruction of Affordable Fashion Bill"

Destruction of Affordable Fashion Bill Gets A Hearing Date

More Propaganda from Professor Scafidi on the Destruction of Affordable Fashion Bill on Bloomberg Law 

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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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Apparel manufacturers.  I am worried about the Innovative Design Protection and Piracy Prevention Act ("IDPPPA") and so should you. 

Do you know that last week WWD predicted a 10-15% rise in the wholesale price of fashion products for spring 2011? Or home sales are down 27% this year and unemployment remains about 9.5%? Or that cotton costs are up 32.2% and analysts are predicting dim holiday sales?

The last thing our country, its fragile economy and the apparel industry needs is more legislation that is guaranteed to drive up the cost of fashion products.  IDPPPA would do just that. 

How?  By giving fashion houses with fat litigation budgets the opportunity to convince judges that their designs are uniquely different from anything that has ever been made before.  If you know your design history, or even have worked in the fashion business for awhile, you know how hard that standard is to meet. 

But this is America and everyone is "entitled" to their day in court.  Plaintiff's lawyers (working on a contingency) are creative and judges historically interpret copyright law expansively.  Companies all along the supply chain would pass off the cost of litigation to the retailer purchaser.  Just what the country needs right now, right?

And the harm of IDPPPA doesn't stop there.  Since IDPPPA requires a plaintiff show that a defendant had "access" to the alleged copied products, designers would have to stop:

• reading fashion magazines;
• shopping retail stores or attending trade shows;
• watching or subscribing to trend reports, or
• caring about the runway shows.

If they do, designers will be prohibited from claiming that their designs are the "result of independent creation."   Another hit our economy doesn't need.

So, if you want to influence the process, now is your chance!  Call your congressmen and senator today. 

Otherwise, you'll have no right to complain when it costs more for clothes for you and your family, or when an unscrupulous plaintiff (think of the ones we see making fabric claims) sues you.

Take action now!!!

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