Design Piracy Protection Act II - Rise of the Fashion Patent Trolls

I don't have much new to say about the Senate's second attempt to enact Diane von Furstenburg's wet dream of a law, the Design Piracy Prohibition Protection Act. DvF, for those of you who don't know, is a big time designer who currently heads the Council of Fashion Designers of America (CFDA). CFDA includes other tiny little "independents", like Oscar de la Renta and Donna Karan.

The DPPA, whose earlier incarnation I wrote about here, is a Three Card Monte tour de force. First they show you the money card, trademark piracy. Oh, the poor designers, having their precious Designs copied by unscrupulous, probably brown-skinned, sweatshop owners who copy the garments right down to the logos and trademarks. Then, they elicit your support, since nobody is in favor of people having their ideas stolen, much less their branding. When you look under the card, though, what you find is that the Act actually establishes clothing design as intellectual property, something only enforceable by civil action.

Back up a second. As I noted here,

First of all, note that this law protects designs, not branding. [Counterfeiting as is practiced on Canal Street in NYC] is ALREADY ILLEGAL UNDER EXISTING LAW, which are not enforced.

Second, THIS LAW DOES NOT ADDRESS THOSE ISSUES. But it will put independent designers out of business. Stop and ask yourself a few questions:

1) Who is more likely to have access to the necessary patent attorneys, independents or big designers? You are going to need lawyers to do patent searches [and applications] and to enforce claims.

2) Given that anyone in the supply chain can be sued for infringement, will you be able to hire pattern makers, cutters, etc.? Only if you can prove that you already own the design.

The biggest supporter of this law is knockoff artist Diane von Furstenberg, who recently got caught knocking off a Mercy jacket design.

This law will protect the big guys, squash what little innovation there is, and wreck US apparel manufacturing.

And another thing ... This is going to lead to patent trolls, the same way patents have in every other field. A patent troll is someone who patents all possible variations on a design theme simply so that they can control market share or set themselves up to be able to threaten potential market entrants with litigation and corner them into lucrative settlements.

Yes, the high end French fashion industry has protection. Have you ever noticed how much attention French fashion shows receive? Do you know why? It's because as soon as the show is over, designers in the US are poring over photos so they can knock them off. The industry thrives on copying, but mostly by copying the high end, not the low end. This law -- and people offering their support -- is advertised as helping the little guy, but it will actually help the big guy, who will go on knocking off the designs of the little guy because they can't defend themselves.

It's f-a-s-h-i-o-n. Everyone is looking to copy what everyone else is doing so that they can lay claim to being fashionable. At present, it's all Open Source. That's about to change. We're about to shift from GNU/linux to Windows 3.11 in the fashion industry.

Branding and logos have nearly killed the industry; no need to have innovative design if you can pass off t-shirts with collars and focus grouped pseudo colors as style. All you have to do is to associate the logo (the Swoosh, the Alligator, the Polo Player, FUBU, the name: Hillfiger, Mossimo) with a certain set of lifestyle choices in the mind of the mark consumer. Then you can pass off whatever crap you want to them at substantial markup.

Kathleen is going to have lots more to say about this, but you can start with these:

Proposed law to destroy 90% of design businesses
Fashion copyright: the death of us all

In the first one, she implores you to "Send emails. Sign the petition." Please do. Not like that has done any good in getting the attention of Congress or the MSM with regards to CPSIA, but at least we have a chance of killing this Golem before it becomes a law; there is little to no chance afterwards.

Hattips to Boing Boing and Walter Olson (Overlawyered).
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Note: If this law passes, I intend to patent the popped collar, enforce it against infringement, but refuse to actually make use of it. Perhaps this kind of thing can be stopped.