This is where the idea of cognitive association comes in. Who do you think of when you see the colour fuschia, or the colour orange? What brands come to mind at the sight of leopard print, or a houndstooth check? Those mental connections are built up through time, an assemblage of visuals linked to names. The stronger and more widespread those connections, the more robust your trademark rights will be. That is why, if a trademarks or copyrights lawyer was teaching you, they’d tell you to create something that stands out.
Giving us the crash course we desperately needed is Ed Timberlake, a trademark and copyright lawyer who would describe his own career as “atypical”. Ed set up his own practice to help people navigate the complex laws of copyrights, trademarks, and intellectual property. His advice for young designers starting their own business? Make sure to have a legal budget in place from the start, and call a small practice for a brief consultation before you settle on your company’s name. Here is why.
This article originally appeared in 1 Granary Issue 6
Am I correct in saying that a trademark is a type of intellectual property that has a recognizable design, or a sign that associates with a product?
I’m not crazy about the term ‘intellectual property’. It seems to me that the term ‘IP’ is just as often employed to obscure the speaker’s meaning as it is to clarify. And I’m not sure the term ‘IP’, whatever it may mean, applies to trademarks at all. In the United States, a trademark can be almost anything that consumers recognize as indicating the source of what you’re selling. It can be a word, or a slogan, or a logo, or a sound, or a scent, or a shape… there really isn’t a category of things that aren’t allowed to serve as trademarks, as long as consumers understand them as trademarks indicating the source of goods or services (and provided they are not otherwise specifically excluded).
“Keep in mind that Off-White has a lot of financial power, which means they can afford to pursue a federal trademark registration, have it refused, and simply try again. There is a lot to learn from them.” – Ed Timberlake
Something like Off-White’s quotation marks?
Yes. Also their use of parallel, diagonal lines, or arrows, or a red zip tie–as long as consumers are seeing and understanding whatever it is as a symbol that this item comes from Off-White. With trademarks, so much depends on the cognitive connections consumers are making–so much that framing the field in terms of “property” seems particularly inapt.
But keep in mind that Off-White has a lot of financial power, which means they can afford to pursue a federal trademark registration, have it refused, and simply try again. There is a lot to learn from them. Not from a legal perspective necessarily, but there is a fashion lesson for all of us. Sometimes, designers almost forget to do the easy, attention-grabbing thing, which may be a little gauche but would be valuable cognitively. Designers should think of what makes someone pull out their phone and post on social media–and maybe go for that a bit more.
From a legal perspective, how would you explain the difference between ‘inspired by’, ‘homage to’, and a blatant copy?
Another problem with using the term ‘intellectual property’ indiscriminately to refer to utility patents, design patents, copyrights, trademarks, etc. is that it doesn’t make clear which area you’re talking about, and each of these areas has very different rules regarding how things such as copying are handled. In a copyrights infringement analysis, for instance, we care very much whether work was copied from another source, whereas in a trademarks infringement analysis, we might not care at all.
In this way, I’m not sure we can think of ‘the law’ as a singular thing. Or, to put it another way, ‘the law’ appears to have mixed feelings about influence, inspiration, originality, and copying, depending on whether we’re talking about trademark rights, or copyrights, or design patent rights, etc. Also, rules vary significantly depending on what country we’re in since many countries approach similar issues very differently. I’m afraid there simply aren’t any easily quantifiable rules about what percentage of copying or degree of similarity is acceptable, particularly since–as a practical matter–what might be acceptable to a registration office or a judge won’t necessarily be the same thing as what’s acceptable to another, larger, a well-funded competitor in your field.
“If you’re a designer, you can either gravitate towards what everybody else is doing, or you can go off in a different direction.” – Ed Timberlake
Do you believe there is a place for true authenticity in fashion, especially with the advent of social media platforms?
Perhaps an upside to the lack of uniform rules is that it might encourage people to do their own thing, to be (or become) who they are as designers. At the risk of sounding hopelessly naive, it seems to me that the more your work can look like your work and not somebody else’s, the more social media might benefit you by documenting, from the beginning, the ‘you-ness’ of what you do.
If you’re a designer, you can either gravitate towards what everybody else is doing, or you can go off in a different direction. Maybe the first hundred people who look at your unusual designs will say they are horrible because there is no frame of reference for them. But if you can make a visual name for yourself in that way, then you occupy that space in a much stronger way than if you’re chasing after being similar to other people–a cognitive connection goes a long way.
“The more you are yourself, the harder it is for somebody else to copy that.” – Ed Timberlake
Do you think that social media is a powerful tool through which to address copyright issues, or instead of a floodgate for knock-offs and copycats?
I think it’s both. I don’t see why it has to be one or the other. It would be a mistake to not use social media to call out things when they strike us as wrong. However, there is a valid point to mention from a legal perspective: anything that is not unlawful to copy ought to be free to be copied. Unless the law says you can’t, unless there is a social norm or expected behaviour, it is okay to copy and share and get inspiration from things. Opinions may differ, but sometimes I see people pointing out similarities between two items as if that were a negative thing. It’s not because two designs resemble each other that somebody necessarily crossed a line.
Would you recommend for young brands to publish their work online, where everything is so easily accessible?
I would–as a practical matter, how can you not? But there is nothing in the world that’s going to prevent somebody online from looking at your stuff, saying, “Hey, that’s cool!”, and copying it. There is no mechanism that stops them. I don’t mean to set up an impossible task for designers, but it’s worthwhile to set out an identity in multiple ways. I would hate to have my whole identity tied to one specific dress. The more you are yourself, the harder it is for somebody else to copy that.
Do you think smaller brands have more power now with the advent of social media?
Yes–a major advantage of social media is that it can allow you to get out in front of an audience for almost no money, and affords you the opportunity to show how you’re different. That seems incredibly valuable to me because you can potentially bypass many of the other mechanisms and just go straight for the cognitive connection, which can be a great benefit. You want people to see your work, connect it to your other designs, and connect it to you.
“Behaviour that would be considered infringing in the copyrights context might not be a problem in the design patent context. And actions that would constitute infringement in the design patent context might not be a problem in the trademarks context. ” – Ed Timberlake
What is the requirement for a design to be considered ‘copied’?
This calls for the classic lawyer response: it depends. Behaviour that would be considered infringing in the copyrights context might not be a problem in the design patent context. And actions that would constitute infringement in the design patent context might not be a problem in the trademarks context. It’s also important to remember that from a legal standpoint, not all copying would be proscribed in any event. Depending on the situation, there are certain things the law wants us all to be able to copy. In a sense–again from a legal perspective–it might not be going too far to say that everything can be copied unless somebody of law says it can’t. The problem is that the design patent laws are different than the trademarks laws, which are different from the copyrights laws, which can make it very difficult to assess when a particular design choice is likely to lead to legal action.
There are stories of high street retailers copying luxury brands. But what about independent designers whose designs get copied by a conglomerate-backed business?
Unfortunately, there often aren’t a lot of great legal strategies available to address situations like this on a very small budget. It can help to have designs that stand out as distinctly yours in the first place, and it can help to document what you’ve been creating and when. It can also be helpful to talk to a lawyer ahead of time to get an idea of what kinds of preventive strategies might make sense, whether it be registration, documentation, etc.
“One thing that’s worth mentioning is that with fashion, there is a built- in sexism in the laws.” – Ed Timberlake
It seems that with a lot of these issues, there is not much that could be done unless you set a legal framework from the start.
One thing that’s worth mentioning is that with fashion, there is a built- in sexism in the laws. Most of these laws have been written by men, and most of these laws are getting interpreted by male judges, and over the years male judges have valued certain things–like golf clubs– more than they value other things. Even if they value fashion, there is a practical matter: they might not actually be able to tell two garments apart, because they’re not used to looking at them. There are occasional headlines that say the law doesn’t offer fashion any protection. I don’t think that is entirely true, but with the usual ways that laws are written and interpreted, fashion isn’t a great fit. Copyrights and trademarks didn’t originate primarily to address apparel. If you take the underlying sexism in a lot of these laws and compound it by financial disparities between a big company and a new designer, it’s hard for me to see how prevailing on the side of the law is going to be a workable strategy for a small designer.
“Perhaps the most important thing a young designer can do is seek out qualified legal counsel before there’s trouble.” – Ed Timberlake
What practices are in place for young designers who may not have the time or money to get involved in legal action? Would you recommend going with design protection first, or going straight for a trademark?
Perhaps the most important thing a young designer can do is seek out qualified legal counsel before there’s trouble. Possibly more important than seeking trademark registrations, copyright registrations, or design patents–at least initially–would be having a candid conversation with somebody who can help you strategize for the future. It’s also worth keeping in mind that, in the same way, that making copyrights arguments is unlikely to be helpful in the design patent context, contacting a utility patent attorney might not be terribly helpful in the copyrights or trademarks contexts. Somebody who understands what you’re doing and is able to work within your budget would be best.