Supreme Court Finds Cheerleader Uniform Designs Copyrightable

Last fall, we examined the case of Star Athletica, L.L.C.  v. Varsity Brands, Inc., then pending before the Supreme Court on the question of whether the design of a cheerleader uniform is copyrightable subject matter, or if it is a useful article.  In a 6-2 decision, the majority laid out a new test for analyzing the separability of designs applied to useful articles, and further found that the cheerleader uniform designs at issue in this case were protectable works under that test.  This decision grants expansive rights to authors who apply designs to utilitarian objects, but as we will see below, the new test is far from free of ambiguity.

The Intersection of Copyrightable Works and Useful Articles at the Supreme Court

While most of the design patent world is focused on the Supreme Court's review of the Apple v. Samsung case, which we reported on last week, the Supreme Court is also set to hear oral arguments on Star Athletica, LLC v. Varsity Brands, Inc., a copyright case that could have implications for the scope of rights available to design owners.

Design Patent Links

The biggest design patent news from the last week was clearly Stanford Law School’s Design Patents in the Modern World conference, which was held last Friday and Saturday.  If you thought the popularity of design patents was being exaggerated lately, please see the below photograph from the event, courtesy of Mark Lemley, via Twitter:

Design Patent Links

The last few weeks have seen a flurry of design patent activity, ranging from academia, Computer-Generated Icons, and even the fashion industry.  It’s far too much to post about separately, so, without further ado, we give you this week’s Design Patent Links!

“The Fashion Law” blog is reporting on Stella McCartney’s design patent for a bestselling Lucia mesh polka dot dress from her Fall 2012 collection.  The London based company’s design patent arrived just in time for fashion week.  According to New York Law School’s “Legal As She is Spoke” blog suggested that McCartney’s design patent was just for publicity, “but could prove not to be all that helpful.”

Real Housewifes of New York star and owner/inventor of Yummie Tummie Heather, Thomson, might beg to differ with Legal As She Spoke. Yummie Tummie was sued by shapewear heavy hitter Spanx on March 5, seeking a declaratory judgment of noninfringement of several of Ms. Thomson’s design patents after Yummie sent Spanx cease and desist letters concerning Spanx’s design patents.  The National Law Review provided a nice summary of this shapewear design patent case. Many other outfits are also covering the story, including IPWatchdog, Womens Wear Daily, New York Magazine, and the Huffington Post.  But what several commentators failed to mention is that this is not Yummie Tummie’s first design patent rodeo.  As we have mentioned before on this blog, Yummie Tummie settled a declaratory judgment action brought by Maidenform after Maidenform paid Yummie Tummie 6.75 Million.  In 2011, Yummie Tummie also filed a design patent infringement action against LF USA, a subsidiary of the Hong Kong-based apparel manufacturer Li & Fung, Ltd.  Yummie Tummie has aggressively defended its design patents in the past, and we suspect this case will be no different.  Spanx may be surprised by how not “Yummie” this case might become for them.

As design patents continue to gain credibility with practitioners, academia is also beginning to take note. On April 5-6, 2013, Stanford Law School will host “a major conference on design patents,” titled “Design Patents in the Modern World.” The conference is sponsored by the Stanford Program in Law, Science, & Technology, Samsung Electronics, Nike, and Google and will include public conference on April 5 and a one-day academic symposium with papers on design patents from the leading scholars in the world on design patent issues. Included among the articles slated for discussion is an article co-authored by yours truly and University of Kansas School of Law professor Andrew Torrance. The article is titled “(R)evolution in Design Patent Subject Matter: The Shifting Meaning of ‘Article of Manufacture,” and provides an historical review of the “article of manufacture” requirement in design patent law. Stanford’s design patent conference will be open to the public.