While clothing is a useful article and barred from copyright protection, the same is not true for fabric patterns. Our client, a high-end clothing and design and retail concern, contacted us to report a large national chain store’s advertising and sales of a garment bearing substantial similarity to its own garment. The client was immediately advised that, in order to successfully negotiate and/or litigate the matter to an acceptable conclusion, it would require a copyright registration for its pattern, and our firm’s attorneys helped it obtain such a registration on an expedited basis in connection with the infringement.
Upon receiving the cease and desist communication sent on behalf of the client, however, the manufacturer contacted us and challenged not only the copyrightability of the client’s design, but also claimed that the allegedly infringing pattern was not copied from our client’s garment.
Because we were able to achieve expedited registration of the pattern without objection from the Copyright Office, and because we were able to demonstrate to the infringer that the client’s pattern otherwise met the requirements of the Copyright Act for protectable materials and expression, we were able to successfully reject the manufacturer’s arguments in respect of Copyright validity.
We also flatly debunked the infringer’s claims that it had not copied our client’s design by showing that it had, in fact, copied more than 2/3rds of our client’s color and design elements, and we were even able to recreate the manner in which the pattern was copied – by purposefully switching out certain colors for others, but maintaining precise “repeats” within the design elements when the garment at large was analyzed; these proofs essentially shut the door on further discussion regarding copying.
Recognizing that the manufacturer was almost certainly obligated to indemnify its much-larger client – the national chain – we were able to take advantage of our opportunity to resolve the matter favorably for our client, despite it being a far smaller entity.
In the face of this background, and due to our extensive prior experience handling infringement in the retail and wholesale apparel industry, we were able to calculate the likely profits and our client’s recoverable damages without need for formal court-assisted discovery, and our diligent preparation and assertive but realistic approach during numerous lengthy negotiation sessions resulted in the Firm’s achievement of a significant result for the client without the costs, delays and uncertainties inherent in filing a federal lawsuit.