Apple v. Samsung: Fashion Industry's Design Patent Amicus

The fashion industry has jumped in the Apple v. Samsung dispute, which is set to be argued before the Supreme Court on October 11, 2016.  At issue is whether, where a design patent is applied to only a component of a product, an award of infringer’s profits should be limited to those profits attributable to the component.

The design industry argues that it does not.  In an Amicus Brief filed by the likes of famous fashion names such as Calvin Klein, Paul Smith and Alexander Wang, among many others, they argue that the critical value of industrial design drives sales of consumer and commercial products (see copy of brief here).  The brief goes through a historical perspective of notable designs, such as the Coca-Cola bottle, and GM’s car designs in the 1920s, and concludes that design and the success of the product to which it attaches are inseparable, therefore profits cannot be allocated to the specific portion of the design patent that was infringed.  To quote a portion of the brief:

 

Design patents thus protect from misappropriation not only the overall visual design of the product, but the underlying attributes attached to the design of the product in the eye and mind of the consumer.  When an infringer steals the design of a successful product, it captures the consumer’s understanding of what the product does and what the product mean in addition to the emotional connections associated with the company’s brand.

Design patents have become powerful tools for fashion designers to protect their product, in an area of law where protection has been missing for products that are generally considered utilitarian in purpose.  There are a number of recent disputes that highlight the strength of patents in the fashion industry, most notably the Lululemon lawsuit against Calvin Klein for, inter alia, the waistband design.  Shoe designs are also a perfect example where design patents play a critical role.

If Samsung wins its appeal, it could mean that future infringers might have to only disgorge a portion of their profits for infringing upon a competitor’s design protected by patent.  But in the world of fashion, that might prove problematic.  What makes a stiletto appealing to a consumer but the design itself?  The functionality of a stiletto is the design; yes, it’s a shoe, but so is a Birkenstock.  A consumer will gravitate towards a stiletto, however, not because of the need for comfort, but style (despite the lack of comfort).  Which is why the Apple v. Samsung dispute is so relevant to the fashion industry.