Originally posted 2014-03-14 10:40:57. Republished by Blog Post Promoter

Susan Scafidi seems genuinely shocked — no, I mean, genuinely!  — over this comment by Ralph Lauren:

Nit fun unzer

When the New York Times‘ Eric Wilson listened to Oprah Winfrey and Ralph Lauren chat for charity, one exchange stood out:

“How do you keep reinventing?”

“You copy,” he said. “Forty-five years of copying, that’s why I’m here.”

Of course, everyone knows that the signature looks of the Ralph Lauren family of brands are inspired by classic Americana — with an occasional detour around the globe — but coming from the guy who was on the losing end of the best-known design piracy case of the late 20th century, the admission strikes a chord.

Honestly, honesty?  Now, when the U.S. may be on the brink of finally passing a law that, while it wouldn’t come anywhere near the level of the French protection that wrangled Ralph, would have a similar effect in some cases?

Oh, that law!

Well, a litigation dust-up here and there notwithstanding, Ralph can afford to be honest, honestly.  I think, indeed, Mr. Lifshitz is referring not to copying other proprietary designs, but to that talent that turned him into a gazillionaire:  Mastering the art of assimilating and replicating the look and feel not, with all due respect, of “classic Americana” but a very focused upper-crust Northeastern WASP sub culture and making it his own.

I when I was in college, I observed plenty of Jewish kids from backgrounds like mine, but a generation or two deeper entrenched in assimilation, do this on a personal level.  Some pulled the copying it off, some didn’t.  (I mainly went in the other direction.)  Ralph went beyond accessorizing social climbing mobility and ethnic metamorphosis to selling them.  And he did  it brilliantly, tastefully and very, very profitably.

He’s a real gem.  Why should he lie about “stealing”?

The better question is a question on the one Susan asks at the end of her article:  “Now, when the U.S. may be on the brink of finally passing a law that, while it wouldn’t come anywhere near the level of the French protection that wrangled Ralph, would have a similar effect in some cases?

Of course it would.  Absolutely.  But the real question is not what would effect would the substantive provisions of the IDPPPA have had, in the abstract.  It’s what effect would the cost of the IDPPPA have had on the young House of Lauren.

As as few us were saying at the City Bar Trademark and Unfair Competition Committee meeting last night in connection with SLAPP litigation in trademark cases — both real trademark cases and ersatz ones (some of the former still do exist) — more law just about never gets you better litigation outcomes.  It just gets you more litigation. For any lawyer not on a contingency, that’s good.  For the clients who pay for lawyers, not so good.  For start-ups or entrepreneurial clients, very, very bad.

If the IDPPPA had been in place 45 years ago, would the conduct it addresses have affected or perhaps even prevented Ralph Lifshitz from inventing Ralph Lauren?  I don’t think so, on the merits, though I don’t really know enough about the bloodlines of his designs, especially his early ones, to say for sure.  Did he really magically aggregate and refine an entire sensibility or did he just plain steal designs?  I wasn’t there.  It seems like the former, though.

But the merits are one thing, and the litigation budget is another.  More law means more litigation, and more litigation just plain means less innovation.  If Ralph Lauren’s brilliant borrowing has been less than leading-edge innovation, there is no doubting the entrepreneurial aspect of the fashion empire he has built and the economic benefits it has bestowed on so many.

So, again, would the IDPPPA have strangled the young Ralph Lauren?  The question is a ripe hypothetical case study for the fashion lawyer with time and a grant on his or her hands.  I don’t need either, however, to say this:  It’s hard to imagine that the cost of finding out whether a judge or jury believed his designs constituted “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs,” measured out in hundreds of billable hours even in 1966 dollars, would have done his nascent enterprise much good.

Susan asks would the IDPPPA have “wrangled Ralph”?  It’s unfashionable to say, but I’d think it would have strangled Ralph.

By Ron Coleman

I write this blog.

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