January 31, 2007

I Can Afford the Original Seagull

by PG

Running contrary to what appears to be the conventional wisdom about intellectual property in fashion -- that "[copyright] protection should now be extended to garment designs" and that "fashion design remain[s] mostly unprotected" -- an otherwise-lagging Levi's apparently is making a great success in one area: suing jeans makers who use its "its signature denim stitches." Oddly, the NYTimes article only has a brief quote at the end to represent what I would consider the big problem with Levi's claims: what maker of high-priced jeans would want them to be mistaken for relatively-cheap Levi's? “It was an original design,” he said. “Why would I use Levi’s stitching? If my jeans sell for $200, I would not knock off $40 jeans from Levi’s.”

The problem here is not counterfeiting, because no one who blows hundreds of dollars on a single pair of jeans does so because she thinks they're Levi's. It's therefore more a matter of patent than trademark. Levi had a good idea about how to make a back pocket and an attached label, so everyone else wants to use it -- not so they can make their jeans look like Levi's, but because it's just a good idea. To some extent, this comes closer to the original purpose for giving intellectual property protection: we want people to be incentivized to come up with good ideas, so we'll give them time to be the only ones to profit from their good ideas. But Levi's naturally prefers that the pocket design be regarded as a trademark, because as a patent, it would have expired by now, whereas brands go on forever. (Indeed, the patent on the rivets for jeans expired after 17 years, as Sen. Feinstein pointed out in arguing for extended IP protection.)

Incidentally, the Times seems to have incorrectly reported No. 1,139,254 as the number for the patent/ trademark in question. Searching that number on the USPTO's site turns up a 1915 design for a coffin. [Corrected in comments] The USPTO database also is one of the greatest timewasters ever for the delightful schadenfreude of laughing at people who thought "Garment having a message relating to money printed thereon and adjacent to a reproduction of paper money attached thereto" was an awesome invention in need of protection from the mindthieves.

January 31, 2007 01:17 AM | TrackBack

You need to search the correct database. It's a trademark, not a patent. If you search the trademark registry, you'll find the registered mark.

Posted by: Greg at January 31, 2007 08:45 AM


Thanks for the correction -- the record is as follows. It looks like Levi's didn't actually file for a trademark on the design until 1978.

picture of pocket

Goods and Services IC 025. US 039. G & S: PANTS, JACKETS, SKIRTS, AND SHORTS. FIRST USE: 18730000. FIRST USE IN COMMERCE: 18730000
Mark Drawing Code (2) DESIGN ONLY
Design Search Code 09.01.02 - Embroidery; Labels, clothing; Stitching, not on clothing pockets
09.03.16 - Collars (clothing); Cuffs (clothing); Embroidery on clothing pockets; Pockets; Pockets, clothing with embroidery or stitching; Sleeves (clothing); Stitching on clothing pockets; Waistband (clothing)
26.15.02 - Plain single or multiple line polygons; Polygons (plain, single line)
26.15.13 - More than one polygon
26.15.16 - Polygons touching or intersecting
26.15.28 - Miscellaneous designs with overall polygon shape; Polygonal shapes (miscellaneous overall shape)
26.17.02 - Bands, wavy; Bars, wavy; Lines, wavy; Wavy line(s), band(s) or bar(s)
26.17.05 - Bands, horizontal; Bars, horizontal; Horizontal line(s), band(s) or bar(s); Lines, horizontal
26.17.09 - Bands, curved; Bars, curved; Curved line(s), band(s) or bar(s); Lines, curved
26.17.25 - Other lines, bands or bars
Serial Number 73169399
Filing Date May 8, 1978
Current Filing Basis 1A
Original Filing Basis 1A
Registration Number 1139254
Registration Date September 2, 1980
Prior Registrations 0404248
Type of Mark TRADEMARK
Affidavit Text SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20010806.
Renewal 2ND RENEWAL 20010806
Live/Dead Indicator LIVE

Posted by: PG at January 31, 2007 11:39 AM


Good point, substantively, though

Posted by: krs at February 7, 2007 03:28 PM

Thanks for the compliment.

Regarding the vocabulary question, I don't think I was using "incentivize" as a precise synonym for "motivate." I think of "incentivize" as an admittedly lazy way to say "give an incentive." Incentives are not quite the same as motives. My significant other's infidelity may motivate me to commit murder, but I doubt most people would say it incentivized me. (And of course the language of motive is used in criminal law, when we talk about people's reasons for doing bad things, while the language of incentive is used in regulatory and corporate law, when we talk about trying to give people a reason to do good things.) Incentives are a subset of motives; we are motivated by many more things than we are really incentivized by.

Posted by: PG at February 8, 2007 03:18 AM
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