September 2012 Archives

Once again, the little "fashion copyright" bill that could has been made it through the Senate Judiciary Committee and is headed for the full Senate!

This morning the committee briefly discussed the Innovative Design Protection Act, S. 3523 (IDPA  text here; short description here).  The only skirmish was over a proposal by Senator Michael Lee (R-Utah) to add a "loser pays" provision -- to a bill that is already more narrowly tailored than ever, with more experimental deterrents to litigation and a shorter term of protection than any intellectual property law ever created, anywhere, period.  The wisdom of the bill's primary co-sponsor, Senator Chuck Schumer (D-NY) prevailed, and the proposed amendment was voted down before the final bill moved forward. 

If only all government actions were so quick and efficient!  (Although one wonders whether Senator Orrin Hatch, also R-Utah and the primary Republican co-sponsor of the bill, may give his junior colleague a dressing down.) 
As New York Fashion Week enters its final days, Spring/Summer '13 will be remembered not only for runway trends -- including a blizzard of white, splashes of acid green and orange, relaxed trousers, terrific tailoring, and some especially stunning stripes -- but also as the the season when the legal profession took note of the fashion calendar.

IN THE U.S. CONGRESS today, Senator Chuck Schumer introduced the newest version of the fashion design protection legislation originally proposed in 2006 and currently pending in the House of Representatives.  WWD broke the story even before the official text was made public; since many of you have asked, I've shared it with you here.  Happily the title isn't such a mouthful this time; the IDPPPA is now simply the IDPA, the "Innovative Design Protection Act."  Other than the loss of a couple of superfluous Ps and added exceptions for importers and internet service providers, the biggest changes in in the bill from the House version and the previous Senate version are the following:

  • a provision requiring detailed written notice to alleged infringers, and
  • a 21-day moratorium on commencement of an action after that notice.  And no, damages won't accrue during those 3 weeks.

Once more unto the breeches, dear friends, once more! 

THE U.S. COURT OF APPEALS FOR THE 2ND CIRCUIT was even more dramatic in its timing, waiting until the first day of Fashion Week to finally release its opinion in Christian Louboutin v. YSL.  Christian justly kept his red sole trademark, albeit with a carveout for completely monochromatic red shoes like YSL's; the district court's overreaching attempt to ban all single-color trademarks in fashion was tossed out like a bad impulse purchase.  One small sigh of relief for a man, one giant sigh of relief for the fashion community.  Now we can all put up our red soles and rest.

Fashion law even made it to arguably the world's largest stage, with a FASHION LAW INSTITUTE show in the tents celebrating our Fashion Law Pop-Up Clinics, as well as our 2nd anniversary.  Congratulations to Dimitry Said Chamy, EMC2 Emmett McCarthy, Gemma Redux, Keely Rea, Kelima K, and Vespertine on a beautiful presentation, and thanks to all of you who joined us!  

And to punctuate a week during which legal protection of fashion designs was right on trend, the COUNCIL OF FASHION DESIGNERS OF AMERICA not only partnered again with eBay on "You Can't Fake Fashion" tote bags but also released a new version of its Design Manifesto

Quite the fashion law week!