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patents

Fashion Law

I never thought I’d be in Playboy but… | Fashion law post

Would a rose by any other name still smell as sweet?
Biofit by Playboy bra and panty
New Biofit collection. 

I was lucky my Yorkie (now one) stayed away from my handbags and shoes while he was teething. But lately my laundry has become his fixation. I now have front loading washer and dryer units so when I drop something he notices before I do. He has amassed quite the collection of things, which he hides in a crawl space he thinks he has trained me I respect enough to not enter. His latest victim was one of my Victoria’s Secret Biofit bras. 

I don’t believe in having “good” and “bad” underwear. You should rename any “bad” underwear to unsuitable underwear, and toss it out. Back to the bra at paw hand, the Biofit collection by VS was comfortable and contained bras in options not thickly padded as some of VS’s other collections. 
New Biofit collection by Playboy. Pink bra and panty.

Online I learned that VS discontinued Biofit because VS’s license to the Biofit patented technology (via the Bendon group) ended in 2011. Playboy now has the rights to the Biofit technology.

Biofit by Playboy intimates collection
Current Biofit by Playboy collection.

Would the Playboy branding prevent or encourage you from buying Biofit bras?

The Playboy take on Biofit is surprisingly simple and wearable. The Playboy Biofit even trumps the Victoria’s Secret Biofit bras by adding “SecretService Suede-Touch Lining,” which according to the Biofit by Playboy website, “is designed to keep wearers lifted, in place and adjustment-free all day.”

I never thought I’d be interested in a product by Playboy but given my familiarity and longterm wear of Biofit bras, I may ignore the little bunny and put myself in Playboy apparel. It’s just a name, right?

  

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All photo credit: WWD

Business of Fashion, Fashion Law

Nike sells Cole Haan for $570 Mill


Bonjour mes amis!

Have you tried any Cole Haan flats featuring Nike Air technology?

Cole Haan women's career fashion loafer shoes   Cole Haan Nike Air technology heels   Cole Haan boots with Nike Air comfort technology

If you haven’t, you might be running out of time!

Apax Partners, a private equity firm, is purchasing Nike Inc.’s Cole Haan Brand for $570 million. The change is expected to be finalized in early 2013. The Nike technology will continue on through a transitional period but will not necessarily be a feature in future Cole Haan shoes.

What this sale means for your feet
If you are a fan of Nike Air technology’s cushioning and support in Cole Haan’s shoes, you should stock up on those shoes now. 

Nike Air’s technology is Nike Inc.’s intellectual property (IP), so a sale of the Cole Haan brand does not automatically transfer into the right to use Nike’s IP. While the right to use the technology is something that can be negotiated, it is unlikely that Nike would let go of their technology so easily. 

Cole Haan could get a license to use Nike’s technology but the information given so far has just been that the use will be allowed during the transition. 

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What to take note of if you are a party involved in the sale of brand

Let’s say you were on Apax Partners’ side. You should consider what makes the brand you are buying attractive. If Nike Air technology is the driving force behind sales of the Cole Haan brand, you should want to keep that technology. If you could not get the technology you want an agreement that the technology would not be shared with or sold to another footwear maker. 

Since Nike is an athletic footwear brand and you’d be taking on a brand that focuses on dressier boots and casual shoes, you could ask for the sole and exclusive right* to use the technology in non-athletic footwear. If you could not get the sole and exclusive right you should still try to get the exclusive right for as long as possible or exclusivity for a certain category of goods.

Let’s say you were in a situation like Nike’s. You may want an agreement keeping as many of your original IP rights as possible. So you’d want an agreement that gives a limited, nonexclusive, nontransferable license to use your IP. Giving another party the sole use or right to build on your technology is bad if you later want to expand on that technology. Giving up the exclusive use of your technology should not come cheap. If someone wants exclusivity it means they think others will want in on your IP and that such use would cause loss of profits to them. As such they’d likely be willing to pay extra for that right.

Want to read more fashion law concerning shoes? Learn about Gap’s new legal trouble on my facebook!


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*Agreements that give the exclusive right to something should be written contracts, not verbal ones.

Fashion Law

Nike claims 1 German & 1 US copycat

Bonjour mes amis!

Remember the Nike v Adidas case I recently reported hereWell, a Nuremberg District Court in Germany ruled in favor of Adidas on November 1st. 

In response to Nike’s patent infringement claim, Adidas counterclaimed that the technology has been around since the 1940s and requested a revocation of Nike’s patent. (For smaller updates like the upcoming ruling from Germany’s patent court, follow me on twitter).

Unfortunately for Nike, I am not sure the brand will have more luck in its current (unrelated) trademark infringement case in the USA.

Case intro
In July 2009, Nike filed a case against Already LLC (and its Texas based footwear brand, Yums) alleging the company had a shoe design that was a confusingly similar imitation of Nike’s Air Force One sneakers. 

Nike Air Force One Uptown Sneakers




Do you refer to these sneakers as “Uptowns”?

Background
Nike trademarked this shoe design in 2008 although the design was introduced in 1987. I know what you are probably thinking and yes,  Nelly (an American rapper) has a song called “Air Force Ones” and it is about these sneakers. Ok you probably were not thinking of that but I figured I’d note that the song was released in Nelly’s 2002 album. So the song came before Nike’s trademarks for this design. 

Legal issue
The case is now before the Supreme Court for review. The issue is whether a federal district court is divested of Article III jurisdiction over someone wishing to pursue a claim against a registered trademark without there being an existing conflict alleged by the trademark holder against the other party’s existing activities. 

   Confusingly similar to Nike Air Force Ones
Source: yumslife.com via Fashion on Pinterest


Are these sneakers confusingly similar to the Nike pair above?


The ruling here is critical because it can potentially open a floodgate of people filing frivolous, time consuming, and/or costly claims against trademark holders. If allowed to file these claims, people could also threaten such legal action.

Case background
In November 2009, Already LLC counterclaimed requesting cancelation of Nike’s trademark because it interfered with Already LLC’s ability to sell footwear. Then, in an attempt to avoid continued litigation, Nike created a covenant not to sue.

The District Court then met to determine whether the covenant caused the court to lose subject matter jurisdiction (SMJ). This court then dismissed the case after it found that it no longer had SMJ.

You can check out the court proceedings here via the Supreme Court of the United States blog.

UPDATE: Check out these latest interesting Air Force 1 variations.


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Fashion Law

Flyknit swoosh v. 3 stripes Primeknit… legal use of yarn stretch or illegal patent theft?

Nike stomps on Adidas for copying its new sneaker 

Oh Adidas, first those unfortunate shackle shoes, now an alleged copy? Well, if you believe that any press is good press then I guess Adidas is golden!

Nike Flyknit vs Adidas Primeknit

Fashion Law Issue:

While the shoes above are unlikely to be confused for one another, the issue here is not whether the shoes will be confused but whether the technology behind the two are the same. In this case Nike, Inc alleges that Adidas infringed on Nike’s one continuous knit top shoe design, which is a patented technology.

Case background:

Nike’s Flyknit shoe was released in February 2012 along with other products showcased to be released in conjunction with the Olympic games. The Adidas adiZero Primeknit, released July 2012 was also promoted with the Olympics. It probably annoyed Nike that Adidas was the official apparel sponsor for the Olympics and was promoting a shoe designed like its latest creation.

Nike filed an application with the District Court in Nuremberg for an interim injunction against Adidas for patent infringement.

Ruling:

The court granted Nike an interim injunction against the Adidas Primeknit. Consequently, Adidas must now cease manufacturing and distribution of the shoe in Germany.

In hopes of seeing the shoe in person to comment on similarities, I did a scan at nearby stores in Germany before writing this post but I was unable to find the sneaker. I did however find some scary trademark infringement I will share on social media, so the whole trip was not a bust. 😉

Why is this sneaker just not like the others?
The entire upper is made in one piece. This design is different from usual sneaker designs, which are composed of multiple pieces sewn together. When Nike released the shoe, executives called the shoe revolutionary for its design and reduction of cutting room floor waste.
 
How did Adidas get inspired?
According to Adidas group,

“It all started in 2010 with a trip to the ‘techtextil’ fair in Frankfurt, Germany. There, the two of us spotted a knitted glove on display. It was made of thermoplastic fuse yarns which had been finished in a way that the glove was both flexible and stable. It sparked this idea in us that we could use the same technology on a shoe.”

This idea led to the creation of a limited edition collection of Primeknit Running shoes released in Germany, along with the launch of the Olympics.

How did Nike get inspired?
According to Nike,
Potential verdict:
The issue with this shoe technology patent may seem to come down to which seamless shoe came first because the U.S. has a first to invent system, but the case is in Germany and as is practice in Europe, Germany has a first to file system.

A first to file type of patent system means that patent authorities will not check who is the first and true inventor of a technology in question. (Yes, this makes patent trolls happy). In the U.S. first to create system the winner would be the person who can prove that their invention came first (unlike copyright where it may be okay to have the same product so long as the materials in question were created independent of one another).

Check out some of the Nike Flyknit and Adidas Primeknit sneakers: