Hacker News Reader

Comment by cwkoss | Hacker News Reader

Very disappointing. Irgit shouldn't have won a single suit: fashion design is not copyrightable. Courts overreached here, especially as Irgit purchased this design and did not make it herself.

View on HN

The bikini style is probably unique enough that it could be considered "trade dress", which is protected by IP law: https://en.wikipedia.org/wiki/Trade_dress

The article mentions trade dress being an aspect of their lawsuit against Neiman Marcus and some other companies.

Trade dress was the basis for (one of the?) Apple/Samsung disputes, with Apple making the argument that the distinctive shape of the early iPhone should not be copied: https://revisionlegal.com/trademarks/lessons-trademarking-tr...

Ah yes, the distinctive, never seen before, rounded corner rectangle. A marvel of ingenuity, creativity, and geometric composition.

Intellectual property isn't always about something never seen before, ever, in any application, but about something never seen before in that application. Wipers were famously pateted twice, for ships and for cars. I could see an argument that applying the rounded corner rectange to smartphones is novel so it deserves protection.

> Wipers were famously pateted twice, for ships and for cars

And this doesn't strike you as ridiculous?

I understand we want to protect the little man inventor from staying poor as big companies get rich off of their ideas, but something like wipers being a patented concept on each different vehicle is not a function of this need.

No, we want to encourage people to take good solutions from a domain and to do the work to validate they're good for other domains too. That's non trivial work that needs to be rewarded for it to occur at scale.

BTW, the current state of the art in ship windshield wiping does not look like a car wiper at all.

https://en.wikipedia.org/wiki/Clear_view_screen

The only thing is that trade dress is being used as a proxy for copyright, and trade dress isn't supposed to protect things that are considered functional. I would say having smoothed corners on a device I use with my hands and hold near my face is very functional.

That still seems like a reach to me. IANAE, but it's hard to imagine someone calling a neon green polyester suit "trade dress".

There's plenty of precedent. For example, red soled high-heel shoes:

https://money.cnn.com/2018/06/12/news/christian-louboutin-ec...

Hyacinthe Rigaud's famous 1701 painting of Louis XIV clearly shows Quatorze wearing red, high-healed shoes. Why doesn't that bounder, Christian Louboutin, go and sue the sun king's ghost? Or is that not how prior art works?

The intent of the red sole infringer was to make people think they were Louboutin. It wasn’t red soles for red soles’ sake: it was to intentionally dilute (or piggy-back upon) the Louboutin Design. Just like someone calling a restaurant MacDonalds instead of McDonald’s.

Louboutin's application specifies high-heeled shoes with red soles, ie. the colour of the rest of the shoe is irrelevant. The painting shows high-heeled shoes where the irrelevant part is reddish and the relevant part isn't shown. IANAL and not sure whether it could be relevant if&when, but as it stands it's plainly irrelevant.

https://upload.wikimedia.org/wikipedia/commons/5/5f/Louis_XI...

Wow, what an overreach. I'm surprised they won.

I hope this EU ruling is not applied in the US.

is it really such an overreach when the detail is so strongly associated with their brand that Louboutin shoes are often informally called "red bottoms"?

yes, its an overreach that they should be able to demand and expect the state to protect their inane detail as though that has any value to society or the economy.

a system optimized for rent seeking on the color red is overreaching.

“Red Bottoms” was in the chorus of a song that was a #1 for three weeks in 2017 (Bodak Yellow by Cardi B). Since you seem to be unaware of this “inane” detail that is a big part of current American culture, perhaps you should lay off on passing judgement.

I don't see the comment as judgement passing. Instead, it is a rather important economic observation. A tiny bit of red on a piece of apparel shouldn't be intellectual property, be it a part of American culture or not (I wouldn't dare on speculating how big a part of the culture it is). Rent seeking behaviour on this patch of red is not beneficial to the human race in any readily apparent way and is detrimental due to it being yet another precedent for the ever-growing, soul-sucking, innovation-stifling scope creep of IP.

The popularity of it doesn’t affect whether it is or is not inane and whether it is or is not morally right to protect with state power.

Well reasoned; and perhaps we should mobilize the U.S. Army to protect the concepts and themes central to the next Lil' Wayne single.

Thankfully, Friend Computer just promoted me to Red Clearance so I'm allowed to have those shoes.

Should the Nike Swoosh be protected?

In this case it seems that the courts are ruling in favor of what the legislators didn't want to happen. Fashion is intentionally not subject to copyright.

Trade dress is for identification (like a logo), not for the overeall aesthetic of the product.

Read the wikipedia page, it covers more than that.

Whatever the definition of trade dress, don't you think it matters that it's likely to be stolen? I'd think that would be the first constraint.

There's a fine line between protecting original works and creating barriers to competition through litigation. Not sure just using a different material and stitching method (that has been widely used for ages) qualifies for protection. It's too general. Now if someone is trying to pass off as the same brand name that is something entirely different but that's trademark not copyright.

Reply on news.ycombinator.com