The other answer to your question is… you aren’t ever going to know everything. The less experienced you are the less you know the right questions to ask. Which is why you are so glad that you bought The Book and joined the forum! So you can ask the wrong question and bring down hordes of shrieking DEs more experienced than you are, all terrified that you’re going to make a blunder, and then you can get worrried and call an attorney.

Which it’s much better to do at this stage of the game than later.

So don’t worry, you’re on the right track.

My question is this: how are we regular people supposed to know we are infringing when it’s not an obvious replica? When we didn’t just copy the paper of the person sitting at the desk next to us?

Unfortunately, as a business owner, the responsibility of due diligence is yours. Call it one of the joys. I’m being facetious of course.

An easy test to know whether it infringes is whether or not your product idea could stand on its own, without being linked to or inspired by someone else’s property. Or, compare the situation to something better known. For example, if you made up tees based on disney characters, one could rationally assume they’d raise the ire of disney. Lastly, consider how you’d feel if the shoe were on the other foot. How would you feel if someone used your brand and riffed off your themes to come up with products that capitalized on it?

Back in November, I created a few t-shirts inspired by the Twilight book series. The designs are of my unique character (which is my logo and that I have many variations of i.e. the original, an angel, a cheerleader, etc) with the hairdos of three of the book characters and their respective names.

What I thought was still mostly “my stuff with a twist from a great book” has now become something that I just spent an hour discussing with an attorney who specializes in trademarks and copyrights.

My question is this: how are we regular people supposed to know we are infringing when it’s not an obvious replica? When we didn’t just copy the paper of the person sitting at the desk next to us?

However, there’s also something called a “design patent,” which protects the aesthetic elements of an object rather than its functional ones. These patents are still expensive and time-consuming to get, and are often used in other industrial design fields, like automobile manufacturing (think the grille on the front of a Rolls Royce, for example). They’re not very useful for a garment that will only be in fashion one season — by the time you get the patent, the item would be out of style and out of stores — but a longer-lasting accessory or fabric pattern might be a candidate for a design patent.

All that being said, I don’t know what kind of patent the little snowman cape coat received. From the photo, my thought is cute, but not exactly a scientific breakthrough, so my guess would be a design patent. However, there might be some innovative detail that I can’t see. Then again, patent examiners (like all of us) sometimes fall asleep at their desks. They are hired as experts in their particular fields of science and technology, but sometimes a not exactly original invention slips through, which is why patents can be challenged legally.

Under the FAQs on my website, http://www.counterfeitchic.com, there’s more info on IP protection for fashion. And once again, thanks to Kathleen for running such a great site!

The reason that home sewing patterns cannot be used for commercial production is not that this use is prohibited by intellectual property law, but that the patterns are usually sold under a license that prohibits commercial use. It’s just like when you buy or download computer software and click on an agreement not to share it with anyone else, or when you rent a videotape and agree not to charge others to watch it.

Fitting several bridesmaids from the same pattern — great example, by the way — or making matching dresses for your daughter and her best friend is still private rather than commercial use. It would theoretically be possible for a company to sell a one-use-only pattern, but that would have to be made clear to the purchaser in advance.

Federal copyright and trademark laws would also prohibit photocopying a pattern and selling the paper copies, but that’s a different issue.

I hope that this helps (even if you all already knew the answer!).

And thanks for the props, Kathleen!

Susan Scafidi

(And while I’m not an Aspie myself, I am very much a literal thinker. Hence my compatibilty with nerds and geeks.)

Ok, so the reason I thought my question was OT is that we all know that home-sewing patterns are not to be used for production, and this blog is about production. But the reason I posted anyway is that I wanted to know. And to have a link to refer people to an informed statement in the future as required.

And I also know that people do use home-sewing patterns for production – I believe particularly in the art-to-wear category, though we then get the question of whether art-to-wear matters or counts…

However, even I know better than to use a commercial pattern for production 8~)