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00:00favorite topics trademark and fashion and I'll just I really appreciate that
00:06wonderful introduction I have been doing this for a long time but I know that the
00:10need right now is so great we look every time we turn around it looks like
00:14somebody is trying to misappropriate or copy some of our designs and our work
00:18so I'd love for us to kind of talk about today just some interesting ways of that
00:23you might be able to protect your intellectual property from the
00:26beginning okay we're gonna talk about trademarks trade dress copyright patents
00:32trade secrets and where you can find some free help let's start with some
00:38definitions okay you guys are in the game already you're in fashion and so you
00:42probably know already how this is defined but I think people define it
00:45differently when I was teaching at the University of District of Columbia and
00:50fashion merchandising we talked about fashion as a dialogue right between
00:54innovators who promote proposed those innovations and the consumers who decide
00:59what they're going to adopt or reject but also you might know that other
01:03designer to coon who designed this dress for Michelle Obama our first lady back in
01:082008 right when her husband was accepting the Democratic nomination anyway I talk
01:14about this because I'm from DC and I got to bring it home but this designer to coon
01:19to find fashion differently as fashion with the capital F being sort of those
01:25designs that you that you create wearable items and then fashion with the lower
01:29case F the spectacle the entertainment all of the runway shows and the blogs and
01:35the podcast so we want to kind of talk about the fashion arsenal all of the
01:40things that you're doing right now and sort of how do we protect those things
01:44from the beginning so what is intellectual property well it's not real property it's not
01:49personal property we're talking about products of the mind and when you think
01:54about fashion think about all the different things that you have that you can
01:57protect right now brand name your brand logo your personal name your slogans
02:05hashtags the shape of your handbags right the color of the sole of a shoe the
02:10prints meaning like the images that are on fabrics any embellishments your fabric
02:15technologies apparel for the avatars that you're creating images authenticated by
02:21NFTs that would be that Birkin case that just came out and CGI also collateral
02:28products we're talking like sunglasses shoes and all those extra things that you
02:31create along with apparel your in event invitations right marketing materials
02:37your stores customer list guest list music reality program everything so how do we
02:44secure those rights we're doing it with copyright we're doing it with patents
02:48trade secrets trademarks and trade dress when you think of fashion items think
02:53of a bundle of intellectual property rights right like this handbag here can be
02:57protected with design patents trademark and trade dress but also copyright so
03:03let's go through them because what I'm hoping that by the end of this
03:06conversation and it's a relatively short one we got 20 minutes right but I want you
03:11to be able to think about the different items that you're offering for sale the
03:15different goods and the different services and try to figure out ways that
03:19you can begin to protect them from the beginning because when you do that you
03:24sort of have a chance of fighting chance in this battle okay so when you think
03:29about copyright we know that copyright protects original works of authorship from
03:35the time they're put into a tangible form okay so but the only thing is it
03:40doesn't protect articles of clothing because they're considered useful in the
03:44United States now in France there's something different they protect there
03:47but here they do not so how do we protect fashion well if you think of Diane
03:52von Furstenberg and her famous wrap dress I have a several she couldn't
03:57protect that design right that's something open to anyone else to use in
04:01this country but she could protect the print on the fabric okay that's one thing
04:05she could protect this was a case that came out next this is Star Athletica versus
04:09varsity and in this case they figured out a way to copyright embellishments used on
04:14a cheerleading uniform so just imagine a plain cheerleading uniform but they
04:19created these geometric shapes and stripes that could be placed anywhere so that
04:23different squads could have different unique looks right those embellishments were
04:28found to be copyright protectable so think about it as you're designing you might be able to protect in that way
04:34copyright last for the life of the author plus 70 years okay so that's a long time
04:40what about a design patent protecting the ornamental portions of goods of goods so
04:47these Stuart Weissman shoes protected as a design patent can you believe that
04:51there's no invention here it's just the look of the item protected for 15 years okay
04:57but look at this one here this is a Calvin Klein versus Lululemon case you see the
05:02old them the only thing that they're protecting is this decorative band across
05:05the waist believe it or not you can protect that sort of stylization by a design patent and
05:11Lululemon was able to push back against Calvin Klein because they look too similar
05:16right design patents and that's you can get protection through a design patent by registering
05:22it with my office the US patent and trademark office in Washington DC okay what about a utility patent
05:30these protect the usefulness portions the oven of article of clothing for example I'm wearing a shirt
05:37right here this is by a designer called Rachel Behrens she was a lobbyist in Washington DC I keep
05:42bringing it back there and you see that the shirt that she made she created these extra buttons in
05:47here so that there's no gaping in the front right that was a patented technology lasting for 20 years
05:56okay but you can also see that you can protect fashion like fabrications Gore-Tex lycra etc okay
06:05trade secrets this is another really important one trade secret being the information that makes you
06:12special the thing that gives you a competitive advantage against your competitors all right I'm
06:18going to give you a little bit of a two different stories here when it comes to trade secrets it's
06:25only a trade secret if it's a secret so you have to do certain things to try to keep the information
06:32from being disclosed so when you think of Chanel if I don't know does anyone know the the number one
06:39ingredient in Chanel like that major smell the major flower that they're using it's jasmine okay
06:45so Chanel for decades has been working with a specific farmer and a farm in grass right in France I don't
06:53even know if I pronounce that I took Spanish all the way but but they use a specific specific
07:00farmer they over time decades created a relationship with this farmer they developed when the jasmine
07:07should be harvest how it was going to be harvest etc all of that information is traits can be a trade
07:12secret that's what gave Chanel the competitive edge that they could create this wonderful perfume and to
07:17be able to do it in the way that they do it as long as they keep that a secret through contracts
07:21right non-disclosure agreements with their staff etc then if anyone tried to take that those that
07:28information and tried to use it well then they have a suit right another instance this was letoge had a
07:35case that happened where they were in the business of renting property to third parties okay they were in a
07:42negotiation with urban outfitters and they shared that information as part of their negotiation then urban
07:48outfitters pulls out of the negotiation and decides guess what I am going to do the same thing I'm going to
07:53create a business that basically rents to fashion companies now they have a suit because that business
07:59information was trade secret protected through a contract and so if they try to do that they can't so
08:06you see that it's really important when you know this information from the beginning how you can
08:09comport yourself that you're protected
08:11trademarks and this is my sweet spot because this is what I do trademarks I believe is is really one of the
08:21easiest ways to distinguish yourself in a saturated marketplace we're talking about words and slogans and
08:27symbols and they just help distinguish your goods and services from another it's how customers find
08:32you right they want to find a specific sneaker they'll look at the brand name to determine where
08:36where it's coming from but trade dress is one of the things I want to really emphasize today we're going
08:42to get into that all these different brands I know that you when you see them you think of specific
08:49goods and services you can't have a trademark unless you're selling a good or service under that mark so
08:54you can't just pull a name out of the air and just say oh I got a trademark you must have something in
08:58commerce that's for use so all of these I know when you see that blue box special robin eggs blue you
09:04think of a specific company right ladies and gents Tiffany's right they have that color they've got the
09:10market on that code that is a trademark anything any jewelry sold with that color being used for
09:14packaging is Tiffany's right we know the red bottom for Louboutin but did you know even the store the
09:20apple store is is a trademark just the way it looks and the way it feels okay lots of different marks
09:30word marks right the mark a slogan hashtags can be a mark hashtags so can only be a trademark if you're
09:41using it in it to identify goods or services sold not just in your social media posts so if you want to
09:48protect a hashtag as a trademark you have to use it like this company did on their retail store the
09:53baby their their products and services is a retail store selling apparel so they got the hashtag on
09:59the window that works fine okay we know that also special trademarks can be patterns okay that's one
10:08reason why some companies put logos all over everything they have it's because they know that if you
10:12trademarked if you copy their trademark you can't do that right that's one way you can push back
10:18against this rule that you can't copyright and protect apparel Louis Vuitton okay let's jump into
10:26trade dress packaging on goods the actual shape of the goods you could protect the stitching on the
10:34apparel you could protect color of the souls exterior and interior architecture of a store all right
10:40registrable if it's non-functional and distinctive and here's one the shape of the Chanel bottle in and of
10:46itself is a trademark that's called trade dress so as you're creating products as you're creating fragrances or
10:52beauty care products you want to make sure think about it maybe your packaging could be protected as a
10:57trademark and guess what trademarks last forever if they're renewed every ten years okay
11:03what about the stitching like Levi's this special stitching on that back pocket trademark trademark trade dress so as you're thinking about your apparel that's a great idea to think about incorporating that maybe into your design
11:17what about some of the hardware on your handbags this is a trademark a trade dress example that hardware for this Louis Vuitton bag is protected forever if they renew it and that might be something distinct that they have on all of their merchandise that would be a great trademark
11:21back to our colors that's Tiffany again in Louis Vuitton and then the interior exterior for the Apple store so even your boutiques maybe if you have a consistent look and feel that could possibly be a trademark
11:36and then the interior exterior for the Apple store so even your boutiques maybe if you have a consistent look and feel that could possibly be a trademark
11:45Maybe, if you have a consistent look and feel, that could possibly be a trademark.
11:52Really quickly, I want to kind of just dwell right here, and I think I'm almost out of time,
11:59but I want to just remind you that trademark rights attach as soon as you begin to use your mark.
12:06As soon as you come up with a mark, you slap it on a good, you use it in association with services that are rendered,
12:12you're offering them for use for sale in commerce, you have trademark rights, even if you don't register with my office.
12:19But there are some benefits for registering with the USPTO, okay?
12:23And some of those benefits are that once you get that registration, you can list it with the US Customs and Border Patrol
12:29so that whenever any goods come into the country that bear your mark, they will be looking and verifying that they're not counterfeit.
12:36So that's another really great benefit of having a federal registration.
12:39You can bring a case in federal court, which is another great benefit, and these rights are national.
12:46And the last thing I'll probably say about trademark from this slide is that trademarks are territorial.
12:53So that means as you're deciding to work in China and other countries, our trademark rights here are not the same as over there.
13:01And so you want to make sure that if you're operating these other countries that you're thinking about getting trademarks in those other countries.
13:08And one way you can do that is through the Madrid Protocol, which is a treaty, and it allows you, if you file a trademark application with my office,
13:17you will be able to file additional paperwork and additional fee to leverage that to obtain protection in any country that's listed in this treaty.
13:25Okay? So that's another great, great benefit. I'm encouraging you to do that.
13:29Now let's talk about real cease and desist. Okay? I'm going to kind of flip to the end. If this flashing bothers you, close your eyes.
13:40We're moving. I want to try to get to our resources because the resources page, I think here I am.
13:46Yeah, okay. Cease and desist letters. If you're in business at all, I'm sure that you have experience or you know someone else that has experience receiving a cease and desist letters.
14:03And I would encourage you to go to our website at this website here to try to figure out what you might be able to do.
14:10But the main thing you want to do is deep breathe and just understand that sometimes there are bullies out there in the world.
14:17Read through the documentation that they've given you. Look up their trademark and determine whether this is legitimate at all.
14:24And then try to decide for yourself first, is there any real likelihood of confusion between my goods and services under my mark and theirs?
14:34You're doing your own analysis. And if you think that this is legitimate, then consider either hiring a lawyer or contacting them on the phone and saying, what is this really about?
14:45Starting there is really a good way to start because many times these days nobody, deep pockets or none or no pockets at all want to litigate because it is way too much money and it's way too time consuming.
14:57Okay. How am I doing on time? I think I'm almost up. But let me hit this with you too. I couldn't possibly get through all this information in 20 minutes, right?
15:08Not possible. Not possible. I really tried. I really did. But anyway, this trademark basics boot camp that we have, we do this every quarter.
15:18The next iteration of this boot camp starts on October 5th. And that means that every Tuesday for eight weeks for an hour and a half, you will see me and you will see my manager and we'll be up there talking about trademarks from soup to nuts.
15:32Okay. There's also a 30 minute opportunity during these conversations for you to ask questions on anything you want. And I'm the one fielding the question.
15:41So if it looks like something that sounds like, you know, interesting that everyone can benefit from, I'll bring that up so that we can get to the bottom of whatever your issue is.
15:50These are free. And the USPTO has a ton of free information. You can call this number from 8am to 8pm to call directly, pick up the phone and speak to somebody who might be able to answer some of your questions.
16:03We can't get legal advice, but we can help walk you through the application process and that goes for patents too. If you need help with copyrights, you'll contact the US Copyright Office, which is also located in Washington, D.C.
16:17I like to think of Washington as the fashion advocacy center. That's what we are. Okay. Thank you very much.
16:24I think we have time for a few questions. I'm happy to help if you have any. No questions? Okay. That means I did a really good job.
16:38All right. Thank you. You can find me at Marisa Terrell. Marisa.terrell at USPTO.gov. If you want this deck, I'll send it to you. Just let me know.
16:51All right. Let's give Marisa one more round of applause.
16:55Thank you all for joining this private workshop. We hope the information provided today will leave you equipped to take those next steps to protecting your ideas and designs.
17:05So our fashion house event is amazing and it's about to get started. Can we get a hand clap for fashion house today?
17:12So please stay around. Please check out all the activations. Our next panel is about in an hour. Oh, my information? Oh, well, my, my, I'm Nandi Howard. My information is Nandi baby on Instagram, TikTok, all that.
17:30But yeah, you guys have a good day. Enjoy fashion house and be back here in about an hour for the next panel. Thank you.
17:35Thank you for the next panel. Thank you.
17:36Thank you for the next panel. Thank you.
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