Copying processes #3

Jess wrote in comments in response toCopying processes #2“>part two:

“since this is a new shirt and this may be a proprietary design feature”

What does that mean exactly? Are processes/designs ever patented and exclusive to some manufacturers? How do we know what to stay away from if that’s true?

I didn’t use “proprietary” according to the legal definition but the common one. By proprietary, I meant they may have invented it. Let’s say they did invent it; it is highly unlikely they went to the bother of patenting it because frankly, it’s rarely ever worth the effort and this company is established enough to know that. However, in my way of thinking, even if it’s not patented, I think they’re entitled to some exclusive use of it although that’s not enforceable by any means. I mean, I can “enforce” it on my end by refusing to tell anybody how to copy it but that doesn’t mean anybody else will fall in line behind me.

Now regarding your question of “How do we know what to stay away from”, you often can’t and for a couple of reasons. Let’s say you came up with an idea yourself and produce it, how would you know or ever think to consider that somebody else is already doing it or may even have a patent for it? In a manner of speaking, that’s happened to me. The reality is, some people manage to finagle patents for processes that are obvious in spite of the intent of intellectual property law. In my example, I saw a notice of patent award in a trade magazine for a reversible knit shirt, complete with illustrations. I laughed myself sick over it because I’d been making reversible knit shirts just like that for years before this guy ever had the nerve to apply for his patent so if push came to shove, I don’t know how he could have enforced his rights. I thought it was a silly thing to patent; you have to worry about people who’ll go to inordinate lengths to protect mediocre ideas. I mean, if that was the best he could ever do, he had a tough row to hoe. In other words, even if somebody has a patent, some are questionable from the get-go.

However, you should know that if you own such rights, it’s incumbent upon you to advise others of your ownership. In other words, the product should be labeled with patent notices just as you see on many manufactured products and software. If this company had a patent, notice should have been published on the hang tag.

Honestly, it’s rarely worth patenting sewn products processes that are obvious. By obvious, I mean something that can be easily deconstructed with just a visual inspection. Below is a photo of another example of that. It’s a shirt made by a company that knocked off one of my processes:

Please note I describe the side panel construction as a process and not a design detail although I can see how you’d think it’s really both. I describe it as a process because having that right angle bust point is a lot faster to sew in. It sews in faster than a traditional side panel -the stitchers loved it- it makes both the center front and side panels easier to cut and easier to fit in a marker. It’s an example of a concept described as DFMA (design for manufacturing & assembly) which means it saves money. And you just thought it was a cute design detail. Now when I saw this in a magazine, I could’ve chewed nails but regardless, beforehand it wasn’t worth the money, time or effort to patent it. My form of retaliation is to use their photograph without permission :) although it is flattering to have made something that is good enough to be worth the effort of copying. I do take a degree of satisfaction in that they did a terrible job of fitting the thing. That corner should be pointing toward the fullest part of the bust and they were off at least a good inch and a half. Also, the front shirt points and side waist hem are splaying out; very amaterish, don’t you think? This company copied quite a few of my DMFA design concepts -all of them poorly rendered. You’d think they would have been better off to dispense with formality and just hire me from the get-go (this company is now defunct).

In the vein of this discussion I found a great paper from Harvard University entitled: Protecting Works of Fashion from Design Piracy by Christine Magdo that you might want to read. Here’s the closing paragraph:

Fashion seems to be an industry particularly ill-suited to legal prohibitions against copying. Copying – or “borrowing” or “reinterpreting” – is prevalent at every level of the fashion industry. When a lower-priced designer knocks off a higher-priced designer’s clothing, the copy may be a huge success because it offers more value for the price. But very often it is the higher-priced designers who are copying each other. For example, in 1994, Yves Saint Laurent was awarded $383,000 by a French court that agreed that Polo/Ralph Lauren had copied Saint Laurent’s distinctive tuxedo dress.[69] But in 1985, Saint Laurent was fined $11,000 for copying a toreador jacket from designer Jacques Esterel.[70] Even thornier is the fact that very often, if not most of the time, it is impossible to know who came up with the idea in the first place. “Any claim to originality can be problematic today, as fashion has become increasingly derivative and designers all feed at the same trough.”[71] It is not at all uncommon to find striking resemblances among the collections of different designers for the same season. It is obviously more than coincidence when this happens – the fashion world is a small one and the design process is porous. The convergence toward a small group of short-lived trends is the reality of the fashion industry today. When one considers the peculiarities of this industry, the reluctance of the courts and Congress to provide more protection for works of fashion becomes more understandable.

Also, I’m seeking the participation of an intellectual property rights attorney to provide material on this site. If you know someone who may be interested, providing editorial content is a great way to get exposure.

Copying processes
Copying processes #2
Copying processes #3
Copying processes #4
Copying processes #5
I couldn’t make this up if I tried

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  1. jinjer says:

    I went to a seminar by an intellectual property lawyer a couple of years ago. I’ll see if I can dig up his info and pass it along.

    Meanwhile, the difficulty of protecting fashion designs may be one reason why GOATS are so popular: whereas clothing designs can’t be copyrighted, images on clothes CAN.

    I do know a few “fashion designers” who get really bent out of shape when their ideas are copied. Personally, I think they deserve that angst for succumbing to the folly of considering themselves _artists_.

    I am not an artist*, But frankly, clothing designs leak out of me like sweat. I mean, not all of them are GOOD, but still…I’m perfectly happy to move on if my stuff is stolen (and consider it a compliment).

    I would probably get more bent out of shape if a PROCESS I’d come up with was stolen. Kathleen’s was cool. I do have one process I think is really nifty… It makes a really pretty padded contrast edge with one line of stitching that doesn’t show on either side. (have you figured out I dislike topstitching??)

    Kathleen, how do you know they stole your process, as opposed to coincidentally reinventing your wheel?

    *but my husband is! and he’s a genius! go look at his photoblog:

  2. Jess says:

    This was informative! I guess it’s the same thing with the typefaces I design. Do I know if a similar typeface has been designed when I start to design a typeface? No, but I always do a lot of research first to find out what’s already out there, to make sure I’m not stepping on other designers toes.

  3. Susan says:

    Ok, Let’s say I wanted to use that really cool bustline treatment on a dress. What is the right way of going about it? Ask your permission before I figure out how to do it? Is the problem that they stole the outside result (what we see when the garment is being worn) or the inside result (how it was put together) or both?

  4. kathleen says:

    Ok, Let’s say I wanted to use that really cool bustline treatment on a dress. What is the right way of going about it? Ask your permission before I figure out how to do it?

    Lol! Hun, if you figure out how to do it, you own it (your version)-imo. That’s my point. You don’t have to ask me for anything. People should be re-engineering details. If there were a “problem” (there wasn’t, it wasn’t patented or anything), it was the “inside” result of how it was engineered to be put together. Send me a picture of yours, k?

  5. Sarah M. says:

    My understanding from conversations with intellectual property attorneys is that the best protection (at this time) for a non-functional design is trade dress. My layman explanation is that trade dress is a subset of trade mark law that protects the overall design concept.

    From what I understand, once the item is sold over state lines, you have trade dress. I’ve read that you can register it, but it can also remain unregistered. As with a trademark, you have to have to defend it.

    If the design concept is functional, then it falls under patent law.

  6. Matt P says:

    In regards to the picture and poor fit — it seems to me that the “splaying out” of the bottom edge is part and parcel of why the bust point is mal-positioned. The thing seems to be made for a person significantly shorter than the model in the picture. That’s why the angle of the side panel (which should be at the bust point) is too high. It seems the body nips in at what would be the waist, and the splaying you’ve pointed out should probably occur over her hips. Agree?

  7. kathleen says:

    Matt: who knows the truth of it? She was a model hired for the shoot so it’s possible she’s very tall, taller than the fit model it was designed to fit. What is certain is that it looks at least two sizes too large (width wise) for her and in sections (bust scye et) not long enough. The oddity of it is the sleeve isn’t too short on her (but then, western wear has much longer sleeves than average) leaving me utterly perplexed. Btw, it is typical for the front to be a little shorter than you’d think so their big belt buckle will show.

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