Celebrate for Coco!! November 18 is the 89th anniversary of one of the most famous trademarks in beauty/fashion: CHANEL. Although used in commerce in the US as early as 1920, the company filed its US trademark application for CHANEL and the interlocked CC associated with cosmetics and toiletries on November 18, 1924. And the rest is history.
Orly Ruaimi’s jewelry designs have graced the arms, wrists, and necks of many celebrities, including Lady Gaga and Will.I.Am. Her designs embody the phrase “fashion as art”. This view traces its origins back to the French Copyright Act of 1793, which classified fashion as an applied art.
Clothing design is not considered art under US law because the US considers clothing functional. But there are fashion items that receive protection, such as jewelry and certain embellishments. The US Copyright Office provides copyright registration for original jewelry design as a “work of the visual arts.” Jewelry design includes 3-dimensional designs applied to rings, pendants, earrings, necklaces, etc. Copyright protection is automatic in the US; that is, copyright exists as soon as the design is fixed in tangible form in some way – even on paper.
Although copyright protection is automatic, there are advantages to registering your designs with the Copyright Office. First, it provides prima facie evidence of a design’s originality. Second, it provides proof of ownership. And third, it gives the owner the right to bring suit in federal court to protect the copyright. (See www.copyright.gov for more information).
Copyright enforcement is not as simple. The standard to prove infringement is to show that the potentially infringing object has “substantial similarity” to your design. This is something that can be complicated and expensive to prove since most jewelry designs incorporate shapes and objects that are already in the public domain (leaves, circles, etc.). It is very possible that designers could create similar looks independently. Therefore, copyright protection is hard to enforce even with a registration, if your pieces are not objectively unique. Conversely, the more unique/original and the more art-like your jewelry design, the easier it is to protect your rights against potential infringers.
Orly Ruaimi’s designs are so unique, knock-offs are likely less common. Still, as the court in Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co. famously stated, “There is nothing anyone can design or manufacture which someone else cannot make worse and sell for less.”
And that’s where intellectual property rights come in, to help protect the rights of the creators of these beautiful original works.
We thank Ms. Ruaimi for her participation in this post and wish her much continued success. For more information, please visit www.orlyruaimi.com.
Monisha Raja’s “Love is Mighty” brand embodies what she calls “”compassionate living”. Not only are the shoes and handbags made of vegan and often recycled materials, but her Indian production operation employs Indian women from local tribes who are keeping their ancient crafts alive and providing for their families as well. Picture vibrant textured clutches made from vintage saris, and sandals made with intricate hand beading. The shoes and bags are not only beautiful, every item is necessarily a one-of-a-kind.
When asked if she had any concerns about competitors’ attempts to copy her concept or even her products, Monisha says she tries not to rely too heavily on intellectual property protections. She knows that the fashion business is fast-paced and that some designers are quick to cut corners to capitalize on it. But she feels that increased protection such as the proposed Innovative Design Protection Act could be “a hindrance for the designer, causing him/her to be overly cautious.” Monisha Raja strongly feels that while there may be clear instances of glaring intellectual property infringement involving misappropriation of a logo or a trademarked label, legal protection for design must stay flexible so as not to stifle creativity.
Monisha explains that she owes much of her design inspiration to Issey Miyake and Dries Van Noten and shares that in the years following her education at Parsons School of Design, their work influenced her approach to design. She worked for Miyake and through that experience gained a deep appreciation for his textiles and designs. As she transitioned to shoe design she tried to capture the overall feel of Miyake’s work. But, as she makes clear, nothing in her collection makes an express reference to Miyake. Instead, his work inspired her to build on her natural instincts and create her own brand of design.
So, Monisha doesn’t spend time worrying if others are trying to copy her. Instead, she protects the artisanal work that makes the Love Is Mighty brand so strong, by maintaining loyal relationships with suppliers and the local artisans in India.
The Heera shoe, made of recycled biscuit wrappers, has been such a bestseller that she recently declined an investment proposed by a large shoe manufacturing company that offered to expand her business via manufacturing in China. In her opinion, this would have been the antithesis of her company’s principles. It’s the handwork, stitching and beading that make her products special and it’s the story behind her label that makes the Love is Mighty brand as memorable as it is inspiring.
Layne Randolph, Esq. and Juan J. Rivera would like to thank Monisha Raja for her participation; we wish her much continued success with her growing company.
Trademark litigation has captured the attention of the fashion industry once again following Christian Louboutin’s recently filed charges in the Southern District of New York late last month, which alleges trademark infringement against Alba Footwear and Easy Pickins, the primary named defendants in a complaint submitted by Harvey Lewin, Esq., counsel for Christian Louboutin, and the more recent Louboutin v. Charles Jourdan case. The charges have raised questions about the future and direction of the federal circuit court’s outlook on Louboutin’s trademark infringement case in 2012, which culminated with the Second Federal Circuit Court ruling that Louboutin’s signature red soles could be protected under “certain circumstances” when the red soles contrast with the rest of the shoe. As the fashion and legal worlds now anxiously await developments in this new case, designers and fashion companies have mixed reactions to these recent cases in light of business pressures and potential “limitations” on creativity for those who wish to assure a competitive edge in an industry that relies on novelty. In sum, it proposes an unprecedented challenge on the creative and business/legal ends of the industry. Aside from establishing trends or redefining new classics in fashion, developing unique products also has legal ramifications. The creative world in the fashion industry must also be concerned with how the impact of trademark protection for these goods will prospectively secure their longevity, business strength, and popularity with consumers. The answer lies, in part, in how the public values and understands these products. As fashion companies strive to keep their collections and products fresh and enlivened with a unique character, consumers’ appreciation for these goods touches on the legal concept of distinctiveness. We will discuss distinctiveness in fashion law in upcoming posts in our DESIGNER SERIES, starting next week. Stay tuned.
Stella McCartney is no stranger to struggle.
Once upon a time, McCartney was snubbed as a “T-shirt designer” by Karl Lagerfield in her early fashion design days. But Stella McCartney has officially arrived as 2012 draws to a close. She received awards for the “Designer of the Year” and “Designer Brand of the Year” at the British Fashion Awards ceremony held last week.
McCartney’s recognition from her international growth, celebrity following among the Hollywood stars, and status as an “Olympian” designer for the Team Great Britain in 2012 is conclusive of her rightful place among Britain’s premier fashion designers. And her T-shirts paired with tailored pant suits have become a cult favorite in fashionista circles. Her refusal to use leather or fur in her designs and products costs her profit margin dearly, but she embraces the challenge. For McCartney, a “challenge” is the opportunity to take action, which she seeks in everything from fashion design to the environment.
Stella McCartney’s greatest triumphs are likely yet to come. Her luxury brand will be the first to join the Natural Resources Defense Council in its Clean by Design program in addressing pollution resulting from textile production. And that’s just one of many challenges on Stella McCartney’s horizon. Stay tuned….