from the system-works! dept
We've previously discussed how the lack of IP protection in the fashion industry really hasn't kept many designers from making tons of money, despite maximalists' protests to the contrary. The larger issue seems to be counterfeit goods, rather than anyone passing off someone else's creation as their own, and even that has its own stimulatory effect. But there will always be those that try to assert control over aspects of the design process, because trying to control the end product gets you nowhere.
Design Collection Inc., a "textile and garment resource," has filed a fistful of lawsuits alleging that a multitude of clothing retailers have ripped off its copyrighted horizontal stripe pattern. The latest filings target a dozen or so retailers, as well as a number of Does for allegedly infringing on this:
That's from one filing naming Jinwon Apparel and The Buckle (among others).
It takes a seriously creative eye to view these as infringing. Take any garment with horizontal stripes of varying widths and shades and hold it next to another one and you're bound to see some similarities. The closeup photos don't really clarify much. If anything, they seem to indicate there are more differences than similarities. The top one's pattern seems close until you see the entire end product, at which point the comparison falls apart. The lower photo has even fewer similarities in the closeup, never mind the overall photo that shows us only part of the entire product.
And so on it goes. Design Collection has sued clothing retailers over a few different patterns (the stripes surfacing most often) going all the way back to 2011, when ironically enough, it was sued by United Fabrics International for allegedly ripping off some of UFI's designs. (That UFI's designs are protected under copyright is itself a bit of a joke, considering most are generic floral patterns or animal prints.)
While this may be part of the fashion world where copyright protection really doesn't exist, designers can copyright patterns like Design Collection has done here. The copyright office, unlike the USPTO, doesn't make any determination as to whether the submission deserves protection. If you register it, it's yours and you can do what you want with it, like "license it" (read: sell bolts of fabric to -- you can't actually "license" fabric) to apparel companies or, you know, drag them to court and make them point out how their irregular stripes are significantly different from your irregular stripes.
Some of this ridiculousness (copyright fights over patterns) has previously surfaced in odd places, like quilting… and origami. Recognizable patterns would normally fall under the purview of trademark (think Louis Vuitton's infamous "LV"), so seeing something as generic as stripes being the center of a copyright lawsuit is something of an anomaly.
Design Collection may have a valid claim here, but I'm not seeing it. The tendency of anything with stripes of varying widths and colors to resemble something else equally as randomized pattern-wise would seem to indicate that the "design" isn't original enough to warrant protection. But a copyright isn't a trademark, so that bar may never need to be approached, much less surmounted.
Put a skeptical enough mind to it and these lawsuits look more like an aggrieved company poring through clothing companies' offerings until it can find something to use to punish them for choosing a different supplier. Take a look at the wording used in the filings:
Plaintiff is informed and believes and thereon alleges that Defendants, and each of them, had access to Subject Design including, without limitation, through (a) access to Plaintiff’s showroom and/or design library; (b) access to illegally distributed copies of the Subject Design by third-party vendors and/or DOE Defendants, including without limitation international and/or overseas converters and printing mills; (c) access to Plaintiff’s strike-offs and samples, and (d) garments manufactured and sold to the public bearing fabric lawfully printed with Subject Design by Plaintiff for its customers.The first paragraph entertains global conspiracy theories while the second alleges "illegal modifications" to its designs. The first is going to be awfully hard to prove and the latter may invite unwanted discussion about non-infringing derivative works.
Plaintiff is informed and believes and thereon alleges that one or more of the Defendants manufactures garments and/or is a garment vendor. Plaintiff is further informed and believes and thereon alleges that said Defendant(s) has an ongoing business relationship with Defendant retailers, and each of them, and supplied garments to said retailers, which garments infringed Subject Design in that said garments were composed of fabric which featured an unauthorized print design(s) that were identical or substantially similar to Subject Design, or were an illegal modification thereof.
All in all, this seems to be a case of really really wanting to see infringement where none exists and hoping the defendants will be happier to settle rather than try to defend themselves from a variety of claims that might prove difficult to disprove.