Written in coordination with Arza Gilad of arzadesign and Tudor Capusan of Tudor Law
Part 1 of this article discussed the case of arzadesign settling an intellectual property infringement case with Urban Outfitters.? Independent designers who find themselves in similar situations may want to pursue the issue and protect their IP.? So I consulted with Intellectual Property Lawyer Tudor Capusan of Tudor Law LLC and asked for his analysis of this case.? He writes:
Design Patents
Only those articles of manufacture that are new, original, and ornamental can be patented. There is a crucial distinction between design patents and utility patents.? Utility patents protect the way an article functions, while design patents protect the way a design looks.
Arza Gilad did receive a patent for her Handsfree Bracelet Clutch.? Her design patent protects the combination of the rectangular shape of the bag, the zipper look and placement, and the circular handle placement.? The zipper and handle could not be patented individually because they are not new or original on their own.? However, the combination and specific placement of those elements were enough to satisfy the statutory requirements for patentability.
Arza can now enjoy the exclusive right to use her handbag design for a period of fourteen years from the time she was granted the patent.? This market exclusivity gives her the opportunity to be the only person who can profit from her design. The cost of obtaining the patent can be recouped in far less than fourteen years. Attorney?s fees are another financial consideration, and apparently Arza decided that the fees for enforcing her design patent were less than the profits she would have lost had she allowed Urban Outfitters to sell knockoffs of her handbag design. ?Additionally, other potential infringers may have been deterred simply because they were aware that had Arza patented her design. ?Had Arza not filed her patent, Urban Outfitters and many others could have easily manufactured and sold counterfeits and knockoffs at cheaper prices, resulting in revenue losses and damage to Arza?s high-end brand.
Ultimately, designers must decide whether the cost of obtaining and enforcing the patent is worth the market exclusivity.? This decision can be difficult to make without consulting an attorney who is familiar with both processes.? Whatever the ultimate decision, many designers make their business more profitable in the short- and long-run by enforcing their intellectual property rights.
Can Trademarks and Copyrights Help?
Although trademarks do not protect the goods themselves, they can be used to protect designs indirectly.? This protection works differently from patent market exclusivity.? Trademark law gives the trademark owner the exclusive right to use a mark as an identifier of his/her goods. ?A trademarked logo, for example, proves the authenticity of an original Arza design so customers will not be confused by cheaper replicas.
Copyrighting fashion articles can be difficult because copyright law does not protect useful articles.? Hats, dresses, belts, and handbags have intrinsic utilitarian function, which can make them ineligible for copyright protection.
So while Arza could not obtain a copyright on the design of a handbag, the ornamental and artistic aspects of a handbag are copyrightable so long as they are physically or conceptually separable from its functional aspects.? Common copyrightable elements on handbags are patterns and fabrics. ?It may be possible to assert that the entire design is an original work of authorship, but copyright cases do not firmly support that conclusion.
That said, copyright law might indeed provide very strong protection to some designs.? Fabric patterns are akin to visual works of art, for which copyright protection is readily available. ?So Fashion Designer Diane von Furstenberg began copyrighting her fabric patterns in 2008 and was able to stop Target from selling her ?spotted frog? design.? See Complaint, Diane von Furstenberg Studio, LP v. Target Brands, Inc., 2008 WL 887353 (S.D.N.Y. 2008) (1:08cv00866).
In sum, copyright law protects individual design elements but does not protect the fashion article itself. Your attorney will decide whether copyright law is the best way to protect your design.
Disclaimer
The information in this article is not intended to provide legal advice, and should not be relied on as a source of legal advice. Users of this article should not act on the information found in it. Instead, users should seek professional legal counseling relating to his or her specific matter. Inclusion of third-party content or links to other sites does not imply recommendation or endorsement. Tudor F. Capusan is not responsible for any third-party content that may be accessed through this site or available through links to another site. Tudor F. Capusan assumes no liability for the use or interpretation of information contained herein. This publication is provided ?AS IS? WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
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