IP Update: DPPA & Fashion Law Blog

Three strikes, you’re out! Yes? No?
Apparently not.

The Boston Globe reports that NY Senator Charles Schumer is preparing to reintroduce the Design Piracy Prohibition Act for the fourth time. His latest effort has been buoyed by Jeannie Suk, feminist cum fashionista at Harvard Law School who recently authored a paper entitled Law, Culture and the Economics of Fashion. From the Boston Globe:

Suk says she found it strange that there were laws in place protecting artists and writers, but not fashion designers. She was also concerned that this anomaly could deter people from going into fashion design.

Other than that there are existing laws and regulations to protect designers that aren’t being enforced, I’ll grant she knows more about law than I do but then I know more about apparel than she does. If the DPPA passes, our problem won’t be limited to deterring people from coming into the industry, it’ll be keeping the ones we already have alive. Under DPPA, every DE will have to spend incalculable thousands of dollars on legal fees to prove originality of their concepts or they’re not going to find a contractor who will sew it up for them. They won’t be able to find retail buyers either. Without indemnity, who wants to get sued and go to prison?

I suggest writing Jeannie and Chuck to say DPPA is not the best way to ensure the viability of emerging enterprises. You’re in an enviable position if you can sew and sell it yourself. Unfortunately, 90% of what’s left of the domestic apparel industry will be out of business, no matter how stringent one’s ethical standards are. DPPA amounts to legislating a situation astroturfing monopolists can only dream of. It supports DVF who copies other designers at the expense of emerging talent like most of you. You can also sign our ongoing petition.

You know what’s striking about this mess? That a fashion lawyer like Staci Riordan who was raised in the apparel industry -she’s fourth generation!- also thinks DPPA is a cruddy idea. You may admire her after reading some of her advice (Fashion Law Blog) while I’ll settle for bearing her children.

In other related IP news, courtesy of Fashion & Apparel Law Blog, Burlington Coat Factory is up to more hi jinks. Just what is it with BCF? First it was selling banned products 14 years after the ban, now they’re lost a court case with Fendi. Fendi successfully sued BCF in 1987 for selling pirated Fendi goods, garnering an injunction. On numerous occasions in the ensuing 20 plus years, Fendi served notice that BCF was continuing to sell pirated products. BCF’s defense? They claim Fendi’s quality control was insufficient to monitor its marks meaning Fendi had abandoned its rights. Fendi? Of LVMH IP infamy? Provided you don’t expire from laughing too hard, you can only admire the sheer chutzpah. Maybe BCF is vying for Forever 21’s infamous top slot?

The circuitous summary being, retailers are going to be vigilant if unwilling enforcers if DPPA comes to pass, incurring their own expenses and increasing prices to consumers in the process.

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  1. Heather says:

    How can it be? THREE previous times and they are trying AGAIN? I can’t believe it. I just wrote to Schumer. Thank you for this information Kathleen, and please let us know of anything else we can do.

  2. Lisa Bloodgood says:

    This seems to be just as bad or worse than the universal health care bill, if what I read is true about that bill saying the govt. will have access to your bank account to pull out payments, they’ll say what care or how much of what care you can get (you’ve already incurred $1 million in cancer treatments? Sorry, buddy, you’re cut off. Have a nice life!), and which doctor(s) you can go to even if you don’t get along. Don’t get me wrong, I think universal health care is a good idea, just not the way I’ve heard it’s written. Good grief!!

  3. Reader says:

    “… they’ll say what care or how much of what care you can get (you’ve already incurred $1 million in cancer treatments? Sorry, buddy, you’re cut off. Have a nice life!), and which doctor(s) you can go to even if you don’t get along.”

    Uh, this sounds familiar: It’s called “Managed Care.” At least the government is trying to make insurance companies charge less.

  4. Kathleen says:

    I’m signed up for CPSC recall notices by email. Today’s subject line was “News from CPSC – Three Recalls”. It’s nearly always the same except for quantity. It’s always involves the same retailer -BCF. Two out of today’s three recalls, were hooded drawstrings sold at BCF. I wish I’d been keeping better track but I think that makes 14 recalls -just since November- affecting Burlington Coat Factory. Seriously, such rampant and wanton disregard merits some sort of pointless protest, say, starting a betting pool to guess how many recalls they’ll end up with at the end of 12 months. Either that or the CPSC should dispense with formality and change their subject line to read “News from CPSC – X BCF Recalls”.

  5. I’m not American and I haven’t read your proposed bill so I might be missing the point, but I’ve always believed that in the USA that you’re innocent until proven guilty. I think the proposal therefore is something completely ridiculous due to the nature of having to prove something is not original … this is something I could do with almost any garment … indeed I could break a garment up into its component features and establish duplication due to the very nature of how garments are designed. Conversely, proof of originality therefore is virtually impossible.

    I have a library of literally hundreds of designs that have passed my desk that are complete and dated in all aspects and ready for production but never got produced. From a design perspective they are complete and saleable but no body except the designers crew and myself know they exist. By the very nature that a commercial transaction has occured I stand as proof of their creation … but if you come along and design an identical garment and produce it then who is the original designer? There are companies that hold literally tens of thousands of designs and patterns in stock for corporate buyers to simply purchase and produce as needed. These would be entitled to the same level of protection and rightfully so, but many are simply randomly generated designs based on features identified by a group of subcontract designers.

    Tell me … who owns the original bikini bottom design? … and at exactly what point does a full brief become a hipster? Is there a defined distance? Have I missed the point? -insert confused look here-

  6. Mark Miller says:

    Among other things Charles Schumer is just not that bright.

    He is a co-sponsor of a bill to eliminate tariffs from imported technical outerwear (read ski and mountain gear). After a year long, “government funded” study, it was determined that NONE of this gear is manufactured in the USA anymore and that by removing tariffs, companies would reduce their pricing (do to reduced costs) and lower prices to the consumer.
    (this was Schumer’s reasoning)

    What the Senator from NY fails to understand (everything?) is that this would NEVER happen. But beyond that I run a company that makes SKIWEAR in the USA. We use an embellisher in NYC, and a QUILTER on Long Island. Companies that are in Schumer’s state of NY. We use insulation (Thinsulate) made in the USA, and import down from Canada. And WE are NOT ALONE. There are others out there, doing what we do.

    Additionaly EVERY ITEM that we import (fabric from Italy, Switzerland, France, Japan…Zippers from Italy) every item has TAXES, FEES and Tariffs levied upon them. This year we created a line of boots MADE IN ITALY….duty? YOU BET. Any boot makers out there in the USA?

    I wrote Schumer (and his co-conspirators) back in August of 2009. I am still waiting for the response from any of the 3 senators.

    In another (also recent) case, Schumer took issue with Adidas who operated a small factory in upstate NY, that made “game day” jerseys for the NBA. Seems that they chose to move this factory offshore losing over 100 jobs. Not sure where that stands now.

    I know this is a bit off topic but it certainly brings home the point that …At best the senator is ill informed…making him unfit to make this decision if not others….

  7. Camille says:

    For me, your points are well taken and shared in spirit. My previous posts similar to this pov seemed misunderstood at the least, and ridiculed even at a later ref… It’s so big an issue to clarify. I went to school for 4 years to get a bachelors in fashion design from an Art & Design college. I am extremely sensitive to the sensibilities of “originality” of anything. Most of the time that originality is begun by initial ‘concepts’ yet to be realized and manifested and produced in some form or another. If this stage could be protected, then perhaps what results/produced can have this ‘paper’ trail of origin, maybe this could approach the idea of security of protection of one’s ideas, whether materialized or not. Artists and Crafters tend not to have extras (personnel) that are part of the assemblage of the ideas. Fashion design mostly always does, presumably watering done the security of the ideas. Essentially, lot’s of people to bond. Just makes me work more circumspect as is reasonable, before going completely neurotic and paranoid, knowing that I attract high ethic clients, and none of opportunists.

    I know of a situation where a pattern company threw out, literally tons of patterns – (in varying degrees of completion), into huge bins in a back companion hallway, of a building with other manufacturers. When employees of a mass market company discovered this ‘free’ mother load of designs, many flocked and pillaged the source. An aquaintance of mine samples their label from this contraband, considering themselves very lucky indeed to have had these patterns come available. It really inflames my sensibilities in regards to the proper rights, sloppy caretaking, and overall lack of operating integrity, on so many levels of this sad example.

    Other transgressions, of equal culprits are the many design / designer seekers via potential employers who through this age of ‘electronically transmitted everything’, request samples of your work prior to a physical interview. In the past, unless someone had a photographic memory, your work was relatively safe from outright piracy.

    The difficulty of legislating a true protective form of legal intellectual design security, is if there is an understanding of all the steps and stages of design from concept to production and the ability to create legal strategies to cover every possible crack of the process….

    It would be nice that, if it will be done.

    Oh and regards the bikini bottom, is this excerpt from Wikipedia:
    Predecessors of the bikini, which shocked when it appeared on French beaches in 1947, dates back to antiquity, in Çatalhöyük[1] and the Greco-Roman world.[2] The modern bikini was invented by French engineer Louis Réard in 1946. He named it after Bikini Atoll in the Pacific, the site of the Operation Crossroads nuclear weapon tests in July that year. The reasoning was that the burst of excitement created by it would be like a nuclear device. The monokini, a bikini variant, is a back formation from bikini, interpreting the first syllable as the Latin prefix bi- meaning “two” or “doubled”, and substituting for it mono- meaning “one”.[3] Jacques Heim called his bikini precursor the Atome, named for its size, and Louis Réard claimed to have “split the Atome” to make it smaller.

    today I come away with; fashion isn’t serious, but business is….

    Respectfully to all, and best regards,

  8. Donna says:

    One of the fun projects I did in design school was a catalog of fashion from the earliest era to modern times. We had to find pictures or drawings that were typical of the era and then find the corresponding design in today’s fashion. One that was a real challenge was a ferrionierre from Italian Renaissance. Amazingly I found a modern counterpart in the use of a zipper. Anyway the point of the exercise being that there is nothing new in fashion. Even the ubiquitous T-shirt harks back to the tunic. The dear senator needs to find something useful to do with his time.

  9. Kathleen says:

    Most of the time that originality is begun by initial ‘concepts’ yet to be realized and manifested and produced in some form or another. If this stage could be protected, then perhaps what results/produced can have this ‘paper’ trail of origin, maybe this could approach the idea of security of protection of one’s ideas, whether materialized or not.

    Three points. First, if you’re referring to any illustrations of said ideas, these drawings are automatically protected by copyright. You own it, no one can reuse this artwork without your permission.

    Second, if you mean that the idea or concept should be protected, you’re asking for the law to go above and beyond existing boundaries of IP law. For example, if you can’t patent an idea or concept for a utility item -say, a cure for cancer-, how or why is fashion more deserving in that it shouldn’t be bound by the same standards?

    Third, the issue I stress is not that designs shouldn’t be protected. My point is that the mechanisms by which it is proposed we do it will prevent a career in fashion design for everyone unless they sew in-house and sell all of their output to consumers directly. Most of us cannot afford the costs of navigating the system to protect these works as it is proposed. I can understand people think it should be free or so low cost as to effectively be free but again I ask, if patent and trademark seekers must incur the costs of protecting their IP, why is fashion deserving of special treatment in that designers shouldn’t have to cover the costs of processing the protections?

    today I come away with; fashion isn’t serious, but business is…

    Fashion is serious business, just like the power grid. The power grid is a beautiful thing, a marvel of complexity and engineering. If it weren’t taken seriously, we wouldn’t have it. That we value it as a public good, means we collectively allocate resources to maintain it. Consumers have determined the value, creating the existence of business. So, the issue is not that apparel producers only care about business, it’s that many consumers do not consider fashion of sufficient value so it’s better to go to them and (try to) make them care (in ways that matter) like they do electrical power rather than judging the motivations of people who serve consumer wishes.

    To put it another way, without business, this site wouldn’t exist and people would lack the means to share opinions and information. Free-riding means we collectively get free stuff (like content on this site) because fashion business people are supporting it. It doesn’t seem logical to criticize business people who pay for it if one benefits from their subsidy. -And as a practical matter, you’ve supported it too for which I thank you.

  10. Camille says:

    Thanks Kathleen for your comment(s).

    Ideas, illustrations, submits etc, albeit may have the benefit of an immediate copyright, but the opportunists with the guts, the savvy or the lack of scruples will find a way to take advantage. So it is what it is. Sometimes we hope that the creation of laws will serve as guidelines and boundaries as to how to conduct ourselves lawfully. (An ideal that the concept for a law could be formulated, into a system of rules as what and how a thing could be protected).

    Yes, I can pay for coverage, etc, for internet security — although I was not making a point against nor debating this, just making point to an instance of how ideas are commandeered.

    It seems, given what all can be hacked into, even just as idle vandalism, that payment nor law guarantees that trust cannot or will not be broken. But of course, if motivated and can, we pay the piper, make a better law, or both.

    Excuse my shorthand speak, but this is my meaning…

    “today I come away with; fashion isn’t serious, but business is…”

    Fashion isn’t serious (imho) — no matter how serious I am — thorough, efficient, honorable, reliable, honest, fun,pleasurable etc.–;

    but the business of fashion is deadly serious; to be concerned with copywrites, security – internet or otherwise -etc, etc, etc, innocent mistakes can be lethal.

    Btw, I design and do production, tech packs and sample follow through, and sourcing, in a freelance position. in addition to any personal design endeavors of my own for myself. I am definitely tapped into the grid and have a reasonable footprint in it. I am not speaking in any way shape or form against anyone out there or here on this site. How could I? Why would I?
    But Please forgive any misspeak on my part that would suggest a thing, that is not the case.

    My overriding point of my submit (poorly relayed), was to remark: that though there are many reasons to protect design ideas or production strategies, the complexity to do so may strangle the pleasure out of what those of us consider our work, as the business of our bliss.

    Again, respectfully to all and best regards,

  11. Cheryl says:

    Just to put some numbers to the what-if’s – I currently have 3 trademarks in process. 2 marks and one graphic – I have an attorney on retainer and have done about 1/2 of the filings myself with the trademark office (uspto.gov). To date – I’ve spent about $3500 and depending on the decisions of the trademark office I could expect to spend another $1000 or so. Patents weren’t applicable in my situation, but the costs didn’t appear to be that different. Now, if any of these go into litigation – all bets are off and the sky is the limit for legal expenses.

  12. mark miller says:

    As K and others have pointed out we already have laws in place for protection.
    If Schumer (or any elected official) wants to help Designers & Manufacturers, they should do something to PROMOTE made in the USA fashion. (has anyone seen what ITALY does? they have offices around the GLOBE that promote “made in Italy” and run campaigns in glossy fashion mags).

    Meanwhile on the legal front this month both Coach and Burbery have sued retailers for selling FAKES…. http://us.fashionmag.com/news-90906-Burberry-accuses-TJX-of-selling-fakes

  13. Mark, that’s the other point to all this. Even if DPPA protections were free, no one is going to arrest someone copying your designs. You have to sue them to get them to stop. That you may have a case isn’t much help if you don’t have the money to sue which is the case for most small designers. Everybody thinks they are the one exception to the rule and can find an attorney who will take their case for contingency but the level of damages would have to be considerable and they rarely are. You have to be a big brand yourself in order to make a lawsuit worthwhile and if you were, money wouldn’t stop you from protecting yourself under current law. Point is, applying for DPPA protections is useless if you can’t defend it.

    Again, this law only protects designers who have money, elite socialite designers like Diane Von Furstenberg, not independents like she claims and has herself knocked off. Trying to capitalize on public sympathy (protecting David from Goliath) to score a big win for mega-brands like herself -and at the expense of those she claims to helping- strikes me as poor taste. DPPA would virtually eliminate competition. The big brands would become more powerful and the range of clothing options would plummet.

  14. Erica says:

    Reintroducing a bill 3x times is nothing. DO you have any idea how long they’ve been trying to get patent reform passed? I do. I’m sitting here in DC as an IP lobbyist for engineers. But I digress… I love fashion and I honestly do not understand how anyone can think that the DPPA is a bad idea. Why is it that the authors of books, software and music, architects, designers of this and that, are allowed IP protection. But clothing designers are not? I will never understand your point of view.

    Mark Miller…do you have any idea how many members introduce bills that remove tariffs from certain items? You may think that Charles Schumer is not that bright, but his practice of introducing a bill to remove tariffs is actually VERY common among all members of Congress. Every year, they all introduce legislation to remove tariffs on the items produced in their districts. I’m continually amazed at how little people understand the day to day operations of Washington, let along their poor understanding of what’s happening with the big issues, such as health care.

    and finally, also for Mark Milller, Coach and Burberry sue pirates for trademark infringement, not design infringement. And Schumer is one of the architects of immigration reform, Could be why he cares about off-shoring of jobs. Where does it stand now? Nowhere, along with most everything else in Congress.

    Please, please, please, do your research and understand what goes on in DC before you start opinionating. It doesn’t help the debate when people are ill informed.

    No wonder there’s “inside the beltway” and “outside the beltway.” Both sides perpetuate that situation! urghh

  15. Kathleen says:

    I will never understand your point of view…Please, please, please, do your research and understand what goes on in DC before you start opinionating. It doesn’t help the debate when people are ill informed.

    I could say the same to you. You could follow the internal links I left to learn more about the unintended consequences of this bill and how many people it would leave unemployed and how many independent designers it would put out of business -the very ones it’s designed to protect- but you chose to opine before doing the homework you exhort of us. I’ll save you a scroll, the links are here:

    Unfortunately, 90% of what’s left of the domestic apparel industry will be out of business, no matter how stringent one’s ethical standards are. DPPA amounts to legislating a situation astroturfing monopolists can only dream of. It supports DVF who copies other designers at the expense of emerging talent like most of you.

    I welcome a well thought response that proposes to resolve the issues we’ve been discussing at length over the past three years. Form a rebuttal to those if you will. You won’t understand our point of view until you read it. The only question is whether you care to.

    No wonder there’s “inside the beltway” and “outside the beltway.” Both sides perpetuate that situation!

    I can’t speak for you sitting inside the beltway but is it possible you’re sitting in your own echo chamber? If what we say is so ludicrous that you haven’t read the content of our objections and addressed them, then I don’t understand why it merits a comment.

    ALL: This person left no less than four comments that I combined into one. Make that three, I didn’t copy/paste the personal attack she directed at one of the commentors. I don’t publish those. That makes me a little salty.

  16. Mark Miller says:

    Erica, while you may “Love Fashion” that does not mean you make your living there or even have an idea of how it might work. Fashion has redundancies to it…you know that old saying “there is nothing new under the sun….or “we are not re-inventing the wheel” well this happens quite a bit in ALL types of design. It does not mean that they are NOT original but surely most are in some way derivative (and I do not mean that as an insult) being creative means looking around being inspired by many things to make your statement and being aware of what someone else is doing.…be it in clothing, hard goods, art, literature or science (to site only a few). In our own company we try to be very aware of what our competitors and peers are doing so that we DO NOT look the same (and I am not talking just about copying)…but it does happen that suddenly you show up and present your collection and your buyer says “hey so and so has one of those that looks very similar” it happens and sometimes in a bubble no less. You have not copied but designs can look familiar based on trends or inspirations or the movement and the moment.

    For 2011 we have a “catsuit” in our women’s SKI line. Now surely a catsuit is not new, but we felt it was time to do one (we had done up some designs for 2 seasons and never got to them). Should someone have the patent on the CATSUIT? (and maybe this is not even a good example …but)

    As for Government, while I do not work there (though it seems like you are quite close) I do know this…dysfunction is the order of the day….if it were private industry it would fail. (and who would be there to “bail it out”) While you offer criticism of many points you do not offer fact, only opinion…namely yours! Frankly as a LOBBYIST you are part of the problem with government not the solution…
    I am not sure (my opinion) that it is such a good thing that people keep re-introducing bills that are not accepted…sometimes there might be a reason! As for the Senator from NY. I promise you that his little “stand” he took over the jobs upstate was about “camera time” and nothing more. He fought to preserve 100 jobs in a company yet is looking to remove tariffs on imports that would effect 1000’s of jobs? Why, because Adidas and the NBA have name recognition and make for good PRESS. That is called posturing and it is what our elected politicians do FAR too much of. The Government spent a YEAR paying for a study that said MY BUSINESS and others like it do not exist anymore, and they should remove tariffs on imported products, products that I make in the USA. The GOVERNMENT should be calling me and thanking me for the EVERYDAY struggle that is the daily grind of a small business….the fact that our company still cares to make product in the USA and EXPORT it around the world. The Business of America is Small Business….except to the government. What our company (and many others like us) get from the government is a kick in the teeth, a poke in the eye and a fleecing (and I am not talking sheep subsidies) So Much for a little “Government Rant”.

    (for more about government trade issues and CHINA see this NYT article on Currency)

    GOING TO COURT is for the deep pocketed:
    In the past 2 years we have had to DEFEND our Trademark from: 1. a large corporation that felt we were infringing upon theirs (which we were not as we were senior users and had a registered mark, a different product line, sold thru different channels and were found at NONE of the same retail locations)….a series of letters from our lawyers put an end to that. 2. a Canadian company that not once but TWICE mimicked our trademark with the distinct purpose of causing confusion in the marketplace. (they produce goods in the same “product” line, sell thru the same channels, and sell to many of the same retailers). Neither case went to court for various reasons. The first cost us over $6500 to resolve (just letters and research) the second has cost over $15,000 and counting.
    Neither of those made it to court, the second instance had merit but it costs over $75,000 just to get into court for trademark issues and much more once you are there and there is NOT always a positive outcome…

    Burberry and Coach sued over TRADEMARKS, true, and while there are differences between trademarks and patents, BOTH companies have “trademarked” logos that have become part of their product DESIGN. (the CC logo pattern is both a trademark LOGO and a design of the product when it appears as an overall print….and that is what the basis of the suit is….trademarked DESIGN. Burberry has TRADEMARKED a designed PLAID. It is NOT a logo but actually a weave/pattern of color and fabric that has become synonymous with their name….just as Adidas has won lawsuits over people using the 3 stripe design which they claim is theirs…In one of the cases they have been monitoring this for 4 years…do you know what kind of money we are talking about? The kind that LARGE corporations (or the government) have to spend….if they need to or not.

    I believe that sometimes our elected officials are well intended in seeking legislation, that does not mean they KNOW anything about what they are doing. Additionally much of that legislation is often written by aides that ALSO know little about the industry that they are trying to legislate…LASTLY it is lobbyists and the LARGE corporations that hire them that most often have the ears of these legislators and aides and THEY often have a “heavy hand” in directing the outcome….(I vaguely remember your reference to HEALTH CARE).

    There are no shortage of issues surrounding the fashion industry and government…this should NOT be one of them…it would be nice for once to get some help and this is NOT it.

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