INTELLECTUAL PROPERTY RIGHTS

Submitted towards the partial fulfillment of the degree of Masters of Fashion

Management

INDUSTRIAL DESIGN INFRINGEMENT CASES

Submitted by:
Anuradha Kushwaha (MFM/16/791)
Vrinda Gupta (MFM/16/212)

Under the guidance

Dr. B.B. Jena (Associate Professor)

Submitted to:

Department of Fashion Management Studies

National Institute of Fashion Technology
(Ministry of Textiles, Govt. of India)
NIFT Campus, IDCO Plot No-24,
Bhubaneswar, Odisha-751024.
www.nift.ac.in
WHAT IS AN INDUSTRIAL DESIGN

An industrial design renders an object attractive or appealing, thus increasing its

marketability and adding to its commercial value.

The design may be three-dimensional based on the shape or surface of the object, or
two-dimensional based on the objects patterns, lines or colours. Novelty, originality
and visual appeal are essential if an industrial design is to be patented, although these
criteria can differ from one country to another. Its aesthetic features should not be
imposed by the technical functions of the product.

Legally, industrial design is the title granted by an official authority, generally the
Patent Office, to protect the aesthetic or ornamental aspect of an object. This protects
solely the non-functional features of an industrial product and does not protect any
technical features of the object to which it is applied.

Industrial design rights are granted to the creator of designs to reward them for their
effort and investment in manufacturing the product. These rights enable the owner to
make articles to which the design is applied or in which the design is embodied.

The holder of this legal title has the exclusive right to make, import or sell any objects
to which the design is applied. They can authorise others to exploit the design and
bring a legal action against anyone using the design without authorisation.

In general the period of protection granted is from 10 to 25 years. This is often

divided into terms and an extension of the term requires renewal of the registration.

INDUSTRIAL DESIGN INFRINGEMENT CASES

1. Forever 21 v. Gucci

Gucci accussed the budget-friendly label of stealing designs, claiming that Forever 21
has ripped off several of its high-priced items, before selling its own versions for a tiny
fraction of the price of the original.
In recent seasons, the 96-year-old luxury brand, Gucci has become all the more well
known for its iconic trademark stripes of green-red-green and blue-red-blue and its use
of intricate embroidery and embellishments - both of which it claims had been
replicated by Forever 21.

Exhibit A: Forever 21's bomber jacket, $34.90, pictured right, is uncannily similar to Gucci's
leather version, $3,400, pictured left, including the neckline and bottom lining detail
SOURCE: DAILYMAIL

An example is Gucci's Crackle leather bomber jacket from the house's latest ready-
to-wear collection and retails for $3,400. Forever 21's version is nearly identical, with
the same neck and strip detailing and identical structure, and sells for $34.90, 97
percent cheaper than the designer original.

The feud started in December 2016 when Gucci sent letters to Forever 21 demanding
the brand 'cease and desist from any and all use of blue-red-blue stripes,'.
More letters were sent in January and February. In June, Forever 21 responded by
preemptively suing Gucci to protect its use of the stripes.

Gucci then filed a complaint on August 8th, suing the brand after they resisted the
luxury brand's demands.
2. Forever 21 v. Puma

Puma has found great success with its Fenty by Rihanna collections, and is now
looking to protect the line with a lawsuit against Forever 21. The German footwear
company filed a design patent, trade dress and copyright infringement lawsuit against
Forever 21, a brand notorious for copying designs, after they released a collection of
their own that closely resembles the Fenty by Rihanna x Puma footwear.

According to the lawsuit, Puma is accusing Forever 21 with copying three of its most
popular designsthe Fenty by Rihanna x Puma Creepers, Bow Slides and Fur
Slides in an attempt to "trade on the substantial goodwill of Puma, Rihanna, and the
Fenty shoes."

Puma makes it's case with a complaint stating: "Pumas Creeper sneaker and Fur
Slide and Bow Slide sandals have enjoyed substantial and noteworthy success, and
are currently being sold in both brick-and-mortar stores and online retailers, such as
Neiman Marcus, Nordstroms, Urban Outfitters, and Bloomingdales, among others.
Per Puma, "The demand for the Fenty Shoes is so great that the Puma website has
been overwhelmed with traffic on days that the shoes launch and, in fact, crashed the
day the 'Fur Slide' was first offered for sale."

The patented design of the Creeper, a sneaker that, "routinely sells out within minutes
of the launch of each new version due to overwhelming demand," is clearly copied in
what Forever 21 calls "Yoki Sneakers," a shoe that is widely available for only $25.

SOURCE: SOLECOLLECTOR
The complaint continues by addressing infringement on its "Bow Slides" and "Fur
Slides." Forever 21's are undeniably similar in design and color.

Puma claims: In an attempt to ride the coattails of Pumas substantial investment in

and success with the Fenty Shoes, [Forever 21] is using the Fenty Trade Dress to offer
for sale, distribute, market, and/or sell competing shoes that are confusingly similar to
the Fenty Shoes. As reflected in side-by-side comparisons, [Forever 21s] infringing
shoes are confusingly similar to the Fenty Trade Dress.

In addition to the strong accusations of copyright and trademark infringement, Puma

is also claiming rights to the pale pink and olive green colors used on the "Bow
Slides." As of now, this doesn't seem like a lawsuit that will go in Forever 21's favor
at all.

SOURCE: SOLECOLLECTOR

3. Skechers v. Adidas

Adidas lost its suit alleging Skechers copied its Springblade sneaker design, even
though they definitely did. U.S. District Judge Michael Simon said that the decision
was based on the fact that Skechers began selling the Mega Blade a year before
Adidas received a patent for Springblade in May 2016. Adidas launched Springblade
during Summer 2013.
 SOURCE: SOLECOLLECTOR

Furthermore, Adidas' request for an injunction to stop Mega Blade sales was refused
due to the company's inability to prove it would suffer irreparable harm without one.

4. Aquazzura v. Ivanka Trump

One of the fashion industry's favorite footwear brands, Aquazzura, filed a trade dress
and design patent infringement suit against soon-to-be First Daughter Ivanka Trump
and her licensee, Marc Fisher, for allegedly copying some of its best-selling and most
distinctive shoe designs.

SOURCE: FASHIONLAW

According to Florence-based Aquazzuras complaint, which was filed in June in the

Southern District of New York, a federal court in Manhattan, Ivanka Trump and Marc
Fisher are producing footwear that mimics every key element of the trade dress of
Aquazzuras well-known and distinctive shoes, in particular, a $145 "exact copy" of
its own $700+ Wild Thing style.

The lawsuit came after Aquazzura publicly called out Ivanka Trump on social media
for creating lookalike shoes.

Status: This case, to which Aquazzura added a design patent infringement claim in an
amended complaint filed in November, is still underway

5. Modern Dog Design vs. Target Corporation

Case

Seattle design firm Modern Dog utilized a series of sketches of dogs in their
compendium put out by Chronicle Books in 2008. The firm alleges that illustrations
from that design have been used in a T-shirt produced by Disney/Target for sale, and
filed a lawsuit in 2011.

SOURCE: 99DESIGNS

Outcome
TBD. There hasnt been a decision yet in this case but Modern Dog has been
campaigning online pretty heavily for publicity and funds to help with its legal fees
over the issue.

Significance

The Modern Dog case has brought to light a question burning in the mind of many
designers and artists what happens if a major corporation with many more
resources than me, utilizes my artwork for profit?

Modern Dog was recently forced to sell their studio to cover the legal costs associated
with this battle, so its turning into a very extreme situation for them.
REFERENCES

http://www.esa.int/About_Us/Law_at_ESA/Intellectual_Property_Rights/About_indu
strial_designs

http://www.dailymail.co.uk/femail/article-4779144/Gucci-sues-Forever-21-ripping-
trademark-stripes.html

https://solecollector.com/news/2017/04/puma-sues-forever-21-for-rihanna-sneakers

https://solecollector.com/news/2017/06/adidas-loses-springblade-ruling-skechers

http://www.thefashionlaw.com/home/aquazzura-files-trademark-suit-against-ivanka-
trump-and-licensee

https://99designs.com/blog/tips/5-famous-copyright-infringement-cases/