Weekly IP Buzz for week ending in August 17, 2018

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending August 17, 2018.

Designer Labels Introduce Clothing Technology Into Fashion Lines

Hilfiger Adding Smart Chips to Clothing

A few weeks ago, it was announced that famous fashion line, Tommy Hilfiger, intends to release a new fashion line that will have smart-chip clothing technology embedded straight into the clothing. The technology is intended to be used to allow consumers to accrue loyalty points and rewards. These loyalty points will allow consumers to purchase more merchandise at discounted or special promotion rates and can also be exchanged for concert tickets through Hilfiger’s partnership with Live Nation.

This latest foray by Hilfiger is in partnership with Awear Solutions Bluetooth technology and will allow the clothing technology chips to track when and how often consumers wear the branded clothing when connected to Tommy Hilfiger’s Tommy Jeans Xplore mobile application. Hilfiger has said that the idea behind the new high-tech clothing line is to not only increase sales and revenue but to also create a new line of highly visible “brand ambassadors.”

Smart Jackets by Levi’s Add Functionality to Jackets and Phones

This is not the only fashion label to venture into embedding clothing technology into garments. Levi’s Jeans has also partnered with Google to create a line of smart jackets, code name “Project Jacquard,” which will allow consumers to use high-tech jackets to make new uses of their smart phone, and subsequently provide new functionality to both jackets and phones. Read more about smart clothing.

Fashion Law Series - Part V: S-U-P-R-E-M-E-C-O-U-R-T - Let's Hear It for the Fashion Copyright?

The cheers on both sides are deafening now that copyright protection for fashion designs has reached the United States Supreme Court. The case of Star Athletica LLC v. Varsity Brands Inc. concerns allegations that cheerleading and dance-team uniforms violate certain copyrighted designs. The copyrighted designs were protected as “two-dimensional artwork” and included graphical elements including stripes, chevrons, zigzags, and colorblocks. The district court found in favor of the accused infringer, ruling that the designs had a utilitarian function – as uniforms for cheerleading. In other words, to be a cheerleading uniform, the clothing must have certain graphical features so that the wearer is recognized as a cheerleader, and the graphical elements were deemed not separable from the utilitarian function.

The appeals court reversed the district court decision using a multi-part test: (1) is the design a pictorial, graphic, or sculptural work?; (2) if the answer to (1) is yes, is it a design of a useful article?; (3) what are the utilitarian aspects of the useful article; (4) can the viewer of the design identify “pictorial, graphic, or sculptural features” separately from the utilitarian aspects of the useful article?; and (5) can those features exist independently of the utilitarian aspects of the useful article? Using this test, the appeals court defined the function of the cheerleading uniforms differently from the district court and found that not all cheerleading uniforms must look alike to be cheerleading uniforms. The arrangement of the graphical elements can exist independently of the cheerleading uniform, so the elements are more like “fabric designs” imprinted on fabric than “dress designs.” Read more about fashion copyrights.

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.