Originally posted 2011-08-01 21:56:29. Republished by Blog Post Promoter
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! Read More…