That’s the Innovative Design Protection and Piracy Prevention Act, back up for another shot at the big leagues.
We need more laws right?
But maybe not. Interestingly, you have to pretty much go to the frozen north for an in-depth blog article about this statute — in this case, the Canada Fashion Law blog, whose Ashlee Froese interviewed my new blog-buddy and quasi-namesame Charles Colman on the topic. He suggests that this year’s bill is not just a knockoff of the 2010 version, and that many of the concerns of the previous bill’s critics have been addressed in the current version. An excerpt:
Some members were troubled by language in the bill – “likely to be mistaken” – that seemed to pull the infringement inquiry back toward trademark law [i.e., as in “likely to be confused” — RDC (duh)], contrary to its apparent purpose. We also spent a lot of time examining what might be considered the “core” language of the bill – the threshold requirement that a qualifying design display “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs” – and whether that requirement was too stringent… or not stringent enough. . . .
I wasn’t involved in the debate at that time, but my understanding is that the [American Apparel and Footwear Association] was primarily concerned about frivolous lawsuits. (Of course, this is a point of controversy anytime proposed legislation would create a new cause of action.) The bill’s advocates eventually managed to get the AAFA on board, in large part by changing the required showing for liability from “substantial similarity” (the standard applied in copyright infringement lawsuits) to a higher standard that would require a plaintiff to prove that an alleged knockoff is “substantially identical” to her design.
“Her design”? Interesting. Charles seems to know which side his bread is buttered on!
But surprisingly (or maybe not?) not too many fashion law blogs — and we do have our share of fashion law blogs out there! — have opined on the topic, though one almost got in legal trouble over it. There are exceptions, but it seems as if most fashion law blogs write about the IDPPPA, which is potentially revolutionary, in neutral, kind of gauzy terms. You know, “Only time will tell if the IDPPA is good or bad….”
That kind of blogging. Which makes us super-appreciate the Susans and Stacys of the world.
So why the blandness among the other fashion law bloggers? Is this because in the tight-knit (heh) fashion-law world, some bloggers aren’t quite sure which side of the issue is the “right one”?
UPDATE: Staci Riordan writes in and notes something I should have remembered: bloggers can get around! Here’s her much more recent post on the IDPPA — and she’s still none too happy about it! Check it:
[U]nless you want to walk around in ugly and expensive clothes, let old white men in black robes decide whether two fashion designs are “substantially identical,” tie up your inventory, screw up your relationship with your factor and have to pay scary sums of money to lawyers, I urge you to take action.
Call, write, or email your congressman or senator and tell them to let this fashion fauxpau die!
Otherwise, if you think the fashion business is tough now, just wait to you see what havoc Senator Schumer and his Council of Fashion Designers of American (CFDA) cohorts cause with IDPPPA and its spawn.
Chuck Schumer — don’t get me started on him! Talk about leadership — after a fashion…