By Michael Small In a recent Supreme Court case regarding the compatibility between clothes and copyright, Star Athletica v. Varsity Brands, the justices ruled in favor of Varsity Brands in a 6-2 decision, holding that the Defendant’s cheerleading uniform designs are protectable under copyright because they were deemed conceptually separable from the uniform. This decision answered the question brought to them by Star Athletica’s petition, to which they state the following regarding the compatibility of copyright on clothes using the conceptual separability test: A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. When placed into
Written by Tom Matikainen The United States has deposited its instrument of ratification to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs on February 13, 2015 with the WIPO. The Hague Agreement took effect on May 13, 2015, and enables inventors of industrial designs to file a single standardized application with the USPTO to apply for a design patent in each of 62 territories that are members of the Agreement. Such an Agreement will make it so much easier for inventors to seek design patent protection in many countries outside the US, thereby reducing costs and time to acquire foreign protection. Plus, international design patent applications filed on or after May 13, 2015 will have a term of 15 years, instead of the current 14 year term
In Egyptian Goddess, Inc. et al., v. Swisa, Inc. and Dror Swisa, 543 F3d 665, 88 USPQ2d 1658 (Fed. Cir. 2008) en banc, the Federal Circuit unanimously redefined the test for infringement with regard to design patents to remove the “point of novelty” prong of the analysis. Egyptian Goddess, Inc. (EGI) brought suit in the District Court for the Northern District of Texas alleging that Swisa, Inc. and Dror Swisa (Swisa) had infringed EGI’s U.S. Design Patent No. 467,389 (the ‘389 patent). The ‘389 patent claimed a design for a nail buffer, “consisting of a rectangular, hollow tube having a generally square cross-section and featuring buffer surfaces on three of its four sides.” The accused Swisa product had a rectangular, hollow tube having a square cross-section and featuring buffer surfaces on all four of its sides.