20131117-152945.jpg

Fashion Illustration by Juan J. Rivera

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.

1271706_10201493821683994_1202129570_o-2

Photo Credit: Isabella Bejarano

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

June_2013_JJR_Illustration_LR_Esq_Website_Graphic_2Trademark 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.