Week 11 Forced Choice

1. Smith, Kiri Shannon http://kiriphotography.blogspot.com/- She finished her project with authority and definitely developed an understanding of the law surrounding her major. It was in the right format when mine is not.

2. Cunningham, Lana M. http://cunningstyles.blogspot.com/ -I completed the assignment, it’s the amount of words required, reads like a narrative that is well thought out and researched.

3. Hall, Christopher http://christopherrayniiboutique.blogspot.com/ - He completed the assignment, didn’t put all of the quotes in, but it read like he understood what he was writing about.

4. Renda, Nina http://ninascrazyblog.blogspot.com/ - She finished her project but it wasn’t long enough and didn’t contain quotes.

5. Donohew, Angel R. http://ardphotography14.blogspot.com/ -She didn’t have the final project done and hadn’t done a tweet in 6 days.

6. Lares, Joaquin Frank http://aperturesolutionsphotography.blogspot.com/ - He did about the same amount as Angel so they are actually tied.

7. Ward, Kellie Jeynea http://ariesphotography-kellieward.blogspot.com/ - She didn’t do her project but offered an excuse as to why…?

Adamson, Talia Michelle-Ririe http://photofriend91.blogspot.com/ -She’s on the bottom because she has no blog posts and no final.

Busse, James David http://geminisrandomrant.blogspot.com/ -He has only up to week 6 of his blog posts, hasn’t done a twitter in 13 days, and has no final.

My Argument and Opinions

Not only did I learn so much from this project, I found a lawyer in Mr. Ryan Gile that I made a great connection with and will always have him to turn to for advice and information regarding intellectual property law. His answers to my questions were backed up with facts and actual cases he had been involved in. His credentials make me believe that he is confident in his knowledge of the law surrounding a topic that I will probably encounter very often in the fashion industry. My opinion is that trademark and copyright law are good topics for me to stay on top of when it comes to changes that are made. Not knowing the current law is not an excuse that the courts will accept for leaving oneself open to such a liability.

Rule of Law

Mr Gile had done an excellent job of telling me very precise answers for all of my questions. I then started to research some of the laws that were behind his answers. “In the United States, copyright protection derives from the U.S. Constitution, which requires that original works of authorship be protected by copyright. The current source of this protection is the federal Copyright Act of 1976, as amended. There are no state copyright laws.”(Patent, Copyright, and Trademark, Stim, Richard, p. 200) Trademark law is a major issue in the fashion industry. Trademarks are the most infringed upon elements of clothing and accessory design.“Trademark law addresses the overlapping and conflicting uses of trademarks, service marks, and trade dress by different businesses. Commonly, trademark law is applied to resolves disputes when competing businesses adopt similar product names or logos. The rules for resolving these disputes usually favor whichever business was first to use the name, logo, or trade dress on a category of goods within a geographic area. These rules come from decisions by federal and state courts and from U.S. government statutes known collectively as the Lanham Act.” (Patent, Copyright, and Trademark, Stim, Richard, p. 378-379) Mr. Gile didn’t discuss the Lanham Act at all during our discussion. In fact, he didn’t really mention any specific laws to back up any of his arguments, however, he was very confidant and spoke of his own cases to prove his points’ legitimacy. “The Lanham Act also establishes the trademark registration system and provides for judicial remedies in cases of trademark infringement. In addition to the Lanham Act, most states provide for some means of registering trademarks with a state agency and allow for remedies in case of infringement.” (Patent, Copyright, and Trademark, Stim, Richard, p. 379) When it comes to the designers and their original work being infringed upon, I found that there is an amendment that was added to the current law that helps to protect them. “The Design Piracy Prohibition Act of 2009 was again introduced in Congress. If passed, the law would amend the Copyright Act to provide three years of legal protection for unique and original fashion designs. “(Patent, Copyright, and Trademark, Stim, Richard, p. 201) I also looked up what part of the law would be used when it came to using the images and words of musical artists. “In many states, the right of publicity survives death and can be exercised by the person’s estate. Because the right of publicity can trigger a claim of false endorsement or false advertising, these claims are sometimes brought under unfair competition laws, such as Section 43 of the Lanham Act. “(Patent, Copyright, and Trademark, Stim, Richard, p. 465)

The Questions and Reasoning of the Law

The first thing I asked Ryan Gile was about what the legal rights of a designer would be if they found someone with a counterfeit copy of one of their products. “Counterfeiting is the act of making or selling lookalike goods or services bearing fake trademarks. Likelihood of confusion is self-evident in counterfeiting, because the counterfeiter’s primary purpose is to confuse or dupe consumers. Even when the buyer knows the product is a fake, the business is still liable for counterfeiting, because the product can still be used to deceive others.” (Patent, Copyright, and Trademark, Stim, Richard, p. 405) He told me that it would really depend on what the item was, a purse, a shoe, or clothing. Trademark protection isn’t for functional products. “Trademark law, like copyright law, will not protect functional features. Trademark disputes about this issue arise in cases involving product shapes or product packaging. Unfortunately, there is no simple definition for ‘functional,’ because this area of the law is still evolving. Generally, a functional is essential to the usability of a product. That is, the feature is necessary for the item to work.” (Patent, Copyright, and Trademark, Stim, Richard, p. 381-382) It would have to be for some unique design element, an artistic pattern or image that is a source identifier, that is what a customer looks to as the identifier for the quality and good will associated with the brand, like Coach, Louis Vuitton, or Prada. “A trademark is a distinctive word, phrase, logo, graphic, symbol, or other device that is used to identify the source of a product or service and to distinguish it from competitors.” (Patent, Copyright, and Trademark, Stim, Richard, p. 378) For clothing, since the parts aren’t unique or original, it has to show unique creativity or design. A slogan is ornamental so that can’t be claimed under trademark.

The next question I asked him was about designers for Victoria Secret going out and shopping the other brands and then copying many of the popular, most common elements of the current season that they find. I asked him if the store that the designers bought the suits to take back and copy from had any rights if their sales were affected by this infringement. He replied that again, you couldn’t claim anything had been infringed upon in the swimsuit itself because it’s not original in itself. Trademark infringement could only be claimed for a name on the fabric or some original design element of the garment itself, like for instance a new strap design or closure device. You can’t get a trademark because of aesthetic functionality. “Aesthetic functionality refers to visually appealing but unprotectible features of a trademark.” (Patent, Copyright, and Trademark, Stim, Richard, p. 393) It’s got to have distinctiveness that sets it apart as a trademark. The unique pattern of the fabric could be claimed if it was a source identifier. “A trademark can be more than just a brand name or logo. It can include other non functional but distinctive aspects of a product or service that tend to promote and distinguish it in the marketplace, such as shapes letters, numbers, sounds, smells, or colors. (Patent, Copyright, and Trademark, Stim, Richard, p. 378) I then asked him about the rights of the designers of the suits. It’s the same for the designers of the suits. If they didn’t create a new way to make a swimsuit or a new cut of a suit then there is really no infringement they can claim. He started telling me about a designer, a woman, whose dress designs are trademarked because she was the first to patent that precise way of making a dress. I interjected that it was Diane Von Furstenberg. He said yes that’s it. The wrap dress that everyone associates with her as a designer was the product. I then asked him if it would be more likely to get a copyright or trademark approved for the entire swimsuit as a whole or for a single part of it. He told me that it would more than likely be only a part because the suit itself is not a new, original idea. It’s like if you made a pair of pants. The pants themselves cannot be trademarked because they are not original, you did not invent pants, and you cannot own the design for pants. However if you created a new way to close the pants, or a new fabric, you could trademark that as a source identifier for your brand.

I then asked him if a fabric could by trademarked. He told me that a fabric can be trademarked if it has a source identifier, like the Coach logo. The fabric itself isn’t what is trademarked unless you invented a new fabric that had never been used for. It’s the image on the fabric that is trademarked. You could use the exact same fabric as Gucci if you just didn’t put the name Gucci on it.

ABS makes dresses right after a big awards show that are exact copies of the ones worn on the red carpet that get the most attention. Is this considered a copyright or trademark infringement? A knockoff isn’t considered infringement because it is just recognized universally that you can copy something as long as you don’t try to take an original and try to pass it off as your own. Copying a design exactly is widely accepted and you would only run into a problem if you tried to pull out an original label and put in your own.

Mr. Gile informed me that recently he had a client that made a specific, unique kind of chocolate. The client had been approached by a private company that wanted him to design a label for their product and let them sell his chocolate under their label. They couldn’t come to an agreement about the label and the terms of the use of the product. The company in turn threatened the client that they would buy his chocolate and just pull his label off and put their own on and sell it as theirs anyway. This is called reverse passing or palming off. It was tricky because legally they were buying the product so Mr. Gile couldn’t say they were stealing that. There was no other identifier on the product that would make it known that it was the clients’ product so the company could have passed it off as their own. Reverse passing off is illegal and unethical and is a trademark issue. “Palming off occurs when goods are marketed in a way that makes people think they are really manufactured by someone else; to do this, an infringer usually uses the true trademark on substitute goods. Reverse palming off, on the other hand occurs when a noninfringing label is placed on someone else’s good and the goods are then sold under the noninfringing name. Either way the public is being deceived and the owner of the original goods or mark may file a lawsuit under Section 43 of the Lanham At to prevent this type of activity and recover damages caused by it.”(Patent, Copyright, and Trademark, Stim, Richard, p. 464) So thus it would be illegal for them to pull the labels off and pass it off as their own with new labels.

Legal Authority

After sending out several e-mails and receiving no replies, Ryan Gile of Weide and Miller, Limited was the first lawyer I called from my list of lawyers. His secretary answered the phone and I told her I was a student doing a project on intellectual property law and was wondering if there was an attorney available to answer a few questions. She transferred me to Mr. Gile. He was extremely nice and actually specialized in intellectual property law. He had even handled cases that had to do with fashion issues. We spoke about trademark issues that arise within the fashion industry. As a fashion enthusiast, I have always had questions regarding things like trademark and copyright laws and how difficult it was to enforce these laws in such a global market. “Trademark law consists of the legal rules by which businesses protect the names, logos, and other commercial signifiers used to identify their products and services. One of the principal goals of trademark law is to prevent consumers from being confused in the marketplace.” (Patent, Copyright, and Trademark, Stim, Richard, p. 378) He then explained to me that there are differences in the rules for trademark and copyright law. “A copyright gives the owner of a creative work the right to keep others from unauthorized use of the work. Under copyright law, a creative work must meet all of these three criteria to be protected: It must be original. It must be fixed in a tangible medium of expression. It must have at least some creativity- that is, it must be produced by an exercise of human intellect.” (Patent, Copyright, and Trademark, Stim, Richard, p. 196) Mr. Gile was very knowledgeable about all of the issues we discussed and enlightened me on some of the precedents that have been established through some of his own case outcomes.

Week 10 BOC: Lawyer Jokes

One afternoon, a wealthy lawyer was riding in the back of his limousine when he saw two men eating grass by the road side. He ordered his driver to stop and he got out to investigate. “Why are you eating grass? he asked one man. We don't have any money for food, the poor man replied. Oh, come along with me then.But sir, I have a wife with two children! Bring them along! And you, come with us too!, he said to the other man. But sir, I have a wife with six children! the second man answered. Bring them as well! They all climbed into the car, which was no easy task, even for a car as large as the limo. Once underway, one of the poor fellows says, Sir, you are too kind. Thank you for taking all of us with you.The lawyer replied, No problem, the grass at my home is about two feet tall. (http://www.dog-trader.com/question/20110115234126AAmBsu3.html)

Q: How do you know when your divorce is getting ugly?
A: When your lawyer doesn't seem like a bloodsucking leech anymore.
(http://www.dribbleglass.com/Jokes/lawyers.htm)

The Post Office just recalled their latest stamps. They had pictures of lawyers on them, and people couldn't figure out which side to spit on.

As the lawyer slowly came out of the anesthesia after surgery, he said, "Why are all the blinds drawn, doc?" "There's a big fire across the street," the doctor replied. "We didn't want you to think the operation was a failure."

A fellow walks into a bar with a ten-inch, scowling man on his shoulder. He orders a drink. The little man jumps off the shoulder, drinks a third of the drink and climbs back up. The fellow then orders a sandwich. The little man likewise devours a third of the sandwich.
After this goes on for two more drinks, the bartender says, "Hey buddy, I don't usually pry into customers' private affairs, but what the heck is it with that little guy?"
The customer replies, "Well, I found a bottle on the beach. When I uncorked it, out popped a genie. He gave me one wish. I asked for a 10-inch prick, and the genie shrunk my lawyer!"
(http://www.lectlaw.com/files/fun09.htm)

For three years, the young attorney had been taking his brief vacations at a country inn. The last time he'd finally managed an affair with the innkeeper's daughter.
Looking forward to an exciting few days, he dragged his suitcase up the stairs of the inn, then stopped short. There sat his lover with an infant on her lap!
"Helen, why didn't you write when you learned you were pregnant?" he cried. "I would have rushed up here, we could have gotten married, and the baby would have my name!"
"Well," she said, "when my folks found out about my condition, we sat up all night talking and talking and decided it would be better to have a bastard in the family than a lawyer."

Week 9 EOC: Letters of Permission

I chose to do a permission letter to use trademarked property because I think that is something I may have to sometime use if I become a clothing designer in any way. Trademark issues come up all the time when it comes to working in the fashion industry. I also chose to do a permission to use content online. As a professional in an industry that is becoming more and more online based, knowing how to get a release of a trademarked image will come in handy when it comes to working for a label’s online store or website. I’m also very interested in going into the online press of a label in terms of the company’s social media presence and what kind of online content they want to use on the company website. I also did a model release form because as fashion professional, I will probably use models in some sort of capacity quite often. That is a pretty basic form that an industry professional should be familiar with. I also did a photo release form which I believe I will use when setting up an online store of my own or maintaining a company website for someone else.

Week 8 EOC: Bratz Brawl

“Heading into the Barbie vs. Bratz copyright trial, it had been assumed that the legal battleground would be a timeline of events: Was Carter Bryant, the designer of the pouty-lipped Bratz doll, still an employee of Mattel when dreamed up the now-$500 million per year franchise owned by MGA?” (http://blogs.wsj.com/law/2008/06/09/in-barbie-and-bratz-case-is-the-chronology-the-key/) “During the first trial in 2008, a jury in Riverside found that Bratz creator and former Barbie designer Carter Bryant was in Mattel's employ when he developed the concept for the immensely popular dolls. Mattel was awarded $100 million in damages and Van Nuys-based MGA was ordered to turn over the franchise and stop making and selling Bratz products. That decision was overturned in July by a three-judge panel of the U.S. 9th Circuit Court of Appeals; the case was later sent to Santa Ana for retrial.” (http://articles.latimes.com/2011/feb/11/business/la-fi-0211-bratz-mattel-20110211) Mattel is claiming this is a case of a stolen trade secret, which is costing them billions of dollars in potential revenue. “Mattel alleged in papers filed late Wednesday that the trial was tainted when MGA's Isaac Larian testified that Mattel caused the stress that led to his father's death and destroyed his family, among other things. Mattel is asking U.S. District Judge David O. Carter to declare a mistrial or tell the jury the statements are false. Quinn said in his opening statement last month that MGA has sold $3.3 billion in Bratz and related products, with $292 million in profits, while the doll line decreased Mattel's Barbie profits by $393 million.” (http://www.huffingtonpost.com/huff-wires/20110210/us-mattel-bratz/) This really seems to be a case of Mattel wanting to lay claim to the idea because they just wish they had been the company to release it since they have lost money since the release of the Bratz dolls. Without some sort of written proof that Carter Bryant was indeed employed at Mattel while he thought up the idea for Bratz, I don’t see how Mattel can have a case.

Week 8 BOC: Progress contacting Lawyer

For the final, I have made a comprehensive list of lawyers that are good candidates to contact about asking my questions. I have emailed a few, but gotten no responses. I tried emailing first because lawyers are busy and I thought maybe I would have a better chance of getting answers if it was just something they could do on their own time. Since I have received no answers I'm going to call those that I only emailed. I've made a few calls, however, have not been successful in getting answers as the lawyers have not been available. This unavailability is my biggest issue with this project so far.