Top Tech Issues in Fashion, From 3D Printing to "Dot Fashion" Domain Names

6/21/2013
The fashion industry long has relied on technology for everything from executing essential business processes to pushing the boundaries of design and innovation. With the benefits of every technological advancement, however, come a plethora of risks and challenges — especially to intellectual property rights. New York City's Cowan Liebowitz & Latman (CLL) convened a panel in June at the Harvard Club to discuss 3D printing, ".fashion" domain names, online piracy and counterfeiting and important takeaways from recent legal battles over design patents and trademarks.

1. Fashion's first forays into 3D printing. 3D printing was invented in the 1980s but new innovations and economies of scale are making the technology available to novices and professionals alike. While recent headlines have focused on using 3D printing to manufacture guns and other weapons, the technology is making inroads into fashion. The industry is entering "the dot matrix era," says Bill Borchard, a partner in CLL's intellectual property, trademark and copyright practice.

British footwear designer Janina Alleyne debuted her architecture-inspired Exoskeleton collection of 3D printed shoes in 2012. Mary Huang of Continuum Fashion created a textured bikini using 3D printing technology. And Nike debuted its 5.6-oz. Vapor Laser Talon football cleat earlier this year, manufactured using a 3D plate created from selective laser sintering (SLS) technology and custom-fit to each wearer's specific size.

There are two main approaches to 3D printing: working with filament, which is not suited for the apparel industry, and working with powder or granular material, which is. Although the industry is still developing, Shapeways, Materialise and Stratasys, which just acquired competitor MakerBot on June 19, are three of the most active 3D printing vendors currently in operation. Fashion's 3D designs rely on a flexible, durable white material called TPU 92A-1, which can be dyed.

3D printing offers seemingly limitless creativity and customization, allowing designers and brands to quickly create prototypes, lower manufacturing costs, reduce inventory, virtually eliminate wasted greige material and keep distribution costs down.

But for every upside, there's a potential drawback, too. Quickly producing a 3D garment or shoe in a range of sizes remains challenging, and there's always the risk that the CAD or scanned design blueprints could be improperly shared or used without authorization. Manufacturing counterfeit products, which could bypass customs inspections, is another significant threat.

The Innovative Design Protection Act, which Borchard says hasn't yet been reintroduced by Congress, would offer brands protection against counterfeiters who use 3D printing to create "substantially identical copies" of known fashion designs. "Existing law has trouble keeping up with technology," says Borchard, adding that the emergence of 3D technology could foster a stricter regulatory environment. 

2. Dot fashion versus cybersquatters. "Dot com" has had a monopoly on generic top-level domain names (gTLDs) effectively since the Internet became mainstream, but ICANN — the Internet Corporation for Assigned Names and Numbers — is encouraging the adoption of new industry-specific extensions such as ".fashion" and ".shoes" that would help legitimate brands and brand owners to avoid pesky cybersquatters that buy up domains in "bad faith" for the express purpose of turning a profit.

An industry-specific gTLD would also aid in distinguishing companies with similar names. A consumer looking for Columbia Sportswear, for example, would be hard-pressed to confuse columbia.fashion with columbia.music, notes Eric Shimanoff, a CLL partner who works on issues including information technology, intellectual property and patents.

ICANN's Trademark Clearinghouse allows brands to register new domain names via a "sunrise service" that offers legitimate brand owners "first dibs" on the names, Shimanoff explains, and the Trademark Claims Service issues a warning to anyone who applies for a registered name. That protection, however, comes with limits; it doesn't cover misspelled names or plurals, so cybersquatters could still register and profit from bananarrepublic.fashion or nordstroms.fashion, for example. Brands facing this issue can turn to domain name monitoring services to try to resolve the dispute.

3. Pirates, beware. According to CLL partner Kieran Doyle, online sales of counterfeit goods will soon eclipse those of knockoffs sold at flea markets and by street vendors. What can apparel brands do to thwart the threat?

First, take advantage of services such as alexa.com, a web analytics provider, to determine which pirate sites are generating the most traffic, thus taking away the largest share of profits from your brand. The most heavily trafficked sites demand your attention; smaller ones probably aren't worth the time and resources.

Next, identify how proactive counterfeiters are in diverting consumers from your legitimate brand to their sites. As simple as it may seem, counterfeit sites that are poorly and cheaply designed generally don't warrant much attention; a consumer seeking Gucci products, for example, is looking for a well-designed web site experience that reflects the brand's luxury goods. A sleekly designed counterfeit site that carries the veneer of authenticity, by contrast, could ensnare many a well-intentioned shopper.

A significant number of counterfeiters operate from overseas, out of the reach of U.S. courts, eliminating litigation as a recourse. However, Doyle points out that brands have had success in taking the offending facilitators — companies that indirectly profit from counterfeit transactions or provide payment processing service to counterfeit sites — to court.

When a copyright has been violated, brands can turn to the Digital Millennium Copyright Act's (DMCA) takedown procedures, which get infringing content removed quickly. The Uniform Domain Name Dispute Resolution Policy (UDRP) applies if a brand's trademark is used in a counterfeiter's domain name, Doyle explains, but only 15 percent of pirates use a trademark in the actual URL. For example, a counterfeiter is less likely to register NorthFace4less.com and instead would favor selling knockoffs on something like Parkas4less.com.

4. Court cases. Although lululemon athletica has garnered attention in recent months for the surprise departure of CEO Christine Day and its highly publicized sheer-pants problems, the brand has been battling in court to determine whether its wave design for apparel — based on its distinctive brand logo — would be recognized as a defensible trademark or as simply as design. lululemon appealed the court's ruling that the design was merely "ornamental" but lost its argument that the design had the "inherent distinctiveness" of a logo, says Meichelle MacGregor, a CLL attorney whose practice areas include trademark, litigation, copyright and intellectual property.

Rather, the court found that lululemon's design for apparel featured a uniformly thin line, whereas the brand mark is fuller at some parts and tapered at others. The takeaway? Actively develop design rights and use brand marks consistently, explains MacGregor.

In the highly visible dispute between Christian Louboutin and Yves St. Laurent, the court found that the former has rights that apply only to red lacquered shoe soles on footwear featuring an upper of a contrasting color. According to MacGregor, a new case filed in early June by Louboutin against LadiesOutfitters.com will challenge how far those rights and protection extend. Ladies Outfitters sells stilettoes with similar red soles — but the red color also extends onto the shoe's platform, which just may be enough to skirt Louboutin's red sole/contrasting upper design protection. 

Jessica Binns is a Washington, D.C.-based contributing editor for Apparel.
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