Contrefaçon et eBay

Via legalis.net, la condamnation par le TGI de Paris en avril dernier d’un internaute condamné pour avoir mis en vente un faux sac “Birkin” (Hermès) sur eBay, une pratique apparemment courante sur ce site A noter que son épouse a été condamnée à deux mois d’emprisonnement avec sursis pour avoir recelé le dit sac.

La cliente victime de la fraude avait accepté de payer 735 euros pour un sac qui lui a été présenté comme un authentique sac Birkin, une bonne affaire, puisque ces sacs se vendent environ dix fois plus chers dans les boutiques Hermès, et conservent même leur valeur à la revente.

Knock Offs

An interesting article about knockoffs in today's New York Times. The article quotes a few designers, who are in favor of more protection for their designs.

New Bill to Protect Fashion Design

Here is the text of S. 1957, a bill that proposes to modify the Copyright Code to allow more protection for fashion design. The bill is sponsored by Charles Schumer, NY Senator, and co-sponsored by junior NY Senator Hillary Clinton.

Contra, see this article by Kal Raustiala and Christopher Sprigman. Also contra, here.

To amend title 17, United States Code, to provide protection for fashion design.

(...)

SECTION 1. SHORT TITLE.

This Act may be cited as the `Design Piracy Prohibition Act'.

SEC. 2. PROTECTION FOR FASHION DESIGN.

(a) Designs Protected- Section 1301 of title 17, United States Code, is amended--

(1) in subsection (a), by adding at the end the following:

`(3) FASHION DESIGN- A fashion design is subject to protection under this chapter.'; and

(2) in subsection (b)--

(A) in paragraph (2), by inserting `or an article of apparel,' after `plug or mold,'; and

(B) by adding at the end the following:

`(7) A `fashion design' is the appearance as a whole of an article of apparel, including its ornamentation.

`(8) The term `design' includes fashion design, except to the extent expressly limited to the design of a vessel.

`(9) The term `apparel' means A) an article of men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear;`(B) handbags, purses, and tote bags;

`(C) belts; and

`(D) eyeglass frames.'.(b) Designs Not Subject to Protection- Section 1302 of title 17, United States Code, is amended in paragraph (5)--

(...)

`(B) in the case of a fashion design, embodied in a useful article that was made public by the designer or owner in the United States or a foreign country more than 3 months before the date of the application for registration under this chapter.'.

(c) Term of Protection- Section 1305(a) of title 17, United States Code, is amended to read as follows:

`(a) In General- Subject to subsection (b), the protection provided under this chapter--

(...)

`(2) for a fashion design shall continue for a term of 3 years beginning on the date of the commencement of protection under section 1304.'.

(d) Infringement- Section 1309 of title 17, United States Code, is amended--

(...)

(C) by adding after the third sentence the following: `In the case of a fashion design, a design shall not be deemed to have been copied from a protected design if it is original and not closely and substantially similar in overall visual appearance to a protected design.';

(...)


How will the bill overcome the "usefulness" bump?

What is a useful article according to the US Copyright Law?

In 1990, in Masquerade Novelty Inc. v. Unique Industries , the District Court had held that masks designed to resemble noses of an animal are unprotectible, but the 3rd Circuit reversed.

In Whimsicality, Inc. v. Rubie’s Costume Co.,1989, the 2nd Circuit rejected the plaintiffs characterization of Halloween costumes as “soft sculptures”, finding them to be uncopyrightable clothing.

The Copyright Office Policy Decision on registrability of Costume Designs is as follow:masks are registrable, but costumes are useful articles, and will be registered only upon a finding of separable artistic authorship. It is because masks have no other function than portraying their appearance, whereas costumes may also be worn for warmth or modesty, even though it is generally not their purpose. But the Copyright Act defines a “useful article” as one having “an intrinsic utilitarian function.”

Fashion Trends and Copyright

H.R 5055 may never be voted into law, but it spurs a much-needed debate about the need to protect fashion by copyright.

Last month, the WSJ quoted law professors Kal Raustiala and Christopher Sprigman: "If copying were illegal, the fashion cycle would occur very slowly, if at all." (article on the SSRN site here). Congressman Goodlatte, who introduced H.R. 5055, notes in a statement that "the production life cycle for a fashion design is very short", and thus a designer may not have every opportunity to cash in on on particularly good idea.

Would this bill slow the fashion cycle, and would slowing the fashion cycle make it more profitable for designers, especially young designers?

Trends would not be protected by H.R. 5055. Representative Goodlatte made it clear during last July legislative hearing, and rightfully so, as trends are mere ideas, too elusive to be protected. One could protect the inspiration book of a designer, the mix of pictures, swatches, art and so on that may have inspired a collection (Christian Lacroix published Journal d'une Collection in 1996, written with Patrick Mauriès), but the idea behind the collection. If you ever watched a designer being interviewed after presenting a collection, or attended a collection, you know that designers love to share their sources of inspiration (Swinging Sixties Fairies, NASCAR...) for the particular collection (click on trends for an example)

Johnny Cupcakes

I like this site and the products sold there quite a bit. The first time I stumbled upon the site, I could not help but fear for the designer exposing his designs to the world. How easily may another one get "inspired" by the designs, and produce a similar line? If I would design a screen print tee-shirt, using cup capes as a pun, would it be copyright infringement? The mere idea of using cupcakes as a design motto is a mere idea, and ideas are not protected by copyright. How closer to the original design should I move to break the law?

In a recent Wall Street Journal article about the brand, Mr. Johnny Earle, who is indeed Johnny Cupcakes, is quoted saying" Johnny Cupcakes is more than a brand. It's my name." Well, let's hope that it is not just a name, and that this "name" has acquired secondary meaning, and is indeed is a trademark.