“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. But in 1985, Saint Laurent was fined $11,000 for copying a toreador jacket from designer Jacques Esterel. 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.” 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.