Intellectual property is just one of those things that people have difficulty getting a handle on, particularly if it happens to be something they think ought to be patented but isn’t, or is patented but they think it shouldn’t be or wonder why it is. Confused? Join the crowd. This area of the law is circuitous at the best of times.

The easiest way to begin to explain what intellectual property is means laying out the concept that it’s a physical product that can be patented so that others can’t copy the design. From there, things tend to get a bit complicated when trying to protect ideas, a range, brand or piece of software. Usually, the best way to find out if you need to patent what you have is to consult with a Los Angeles business lawyer with extensive experience in this area; a lawyer with an IP background.

It might help to know that international law has methods in place to protect ideas and, in fact, that happened in 1967 when the World Intellectual Property Organization proposed that intellectual property protection included rights relating to things such as inventions in every possible field, performances, broadcasts, artistic and scientific works, literary works, industrial designs, service marks, commercial names, trademarks, designations, scientific discoveries and protection against unfair competition. It’s quite the laundry list, but it was intended to be as all encompassing as possible.

In retrospect, if you think you have a case of intellectual property infringement, you need to first figure out what kind of intellectual property you are trying to protect. This is because copyright also applies to books and scientific publications, artwork, broadcasts, performances by artists and phonograms. Phonograms are a phonetic writing system symbol for a speech sound, syllable, or other sequence of speech sounds.

You’ll find copyright protection also used in business deals when the property needing protection is something like a brand name or trademark, whose value lies in the information it provides to consumers in terms of product recognition. Another option you could discuss with your Los Angeles business lawyer is trademarking to protect brand wording.

The concept of intellectual property may apply to new inventions as well as new designs. For instance, if an invention is definitely unique (as in not a take-off of something already in existence), or advances some known technology even further, it’s quite possible to use patent law to protect the invention so others can’t copy it for the future.

The first thing to do when dealing with intellectual property laws when you don’t know which way to proceed is to ask questions. It’s better to hire a knowledgeable Los Angeles business lawyer than to thrash about in limbo and not know what you are doing. If you do it the wrong way, it may come back to haunt you later. Look at it this way, it’s your property, idea, invention, show, design, etc. and you want to protect it. Ask how to do that and save yourself some grief later.

To learn more about David Alden Erikson, Attorney at Law, visit Daviderikson.com. Mr. Erikson specializes in Los Angeles fashion law, internet law, business litigation, trademark and copyright law.

South Butt is clearly having a ball with the lawsuit and attendant publicity, reminding us in official court papers and everywhere else that the public “is aware of the difference between a face an a butt.” And that is, of course, just the right question to be asking–whether or not the public would be confused. Add to that the compelling interest in robust free speech and the importance of parody in marketplace of ideas, and South Butt has a pretty good point. And its not just a clever turn of phrase: South Butt’s 19-year old creator claims to be commenting on consumerist culture by sending up the prominence of the North Face logo. That of courts ups the free speech quotient.

So when does free speech and parody trump trademark? Reviewing the case law, McCarthy concludes that “Comparing the cases, a cynic would say that it appears that resolution may turn on no more than how clever and humorous the court thinks the defendant’s usage is. If it is relatively innocent and clever, it will be allowed.” As an example, a federal court in Ohio held that the slogan THIS BUD’S FOR YOU in a florist’s ad campaign was not an infringement of same Budweiser beer slogan. “Certainly the promotion of something as wholesome, delectable and appetizing as a dewy rosebud cannot be said to disparage Anheuser-Busch’s slogan or its product.”

And the there’s the stuffed dog chew toys called CHEWY VUITON, CHEWNEL #5, DOG PERIGNON and SNIFFANY & CO. The court allowed if, reasoning

[T]he [defendant's] “Chewy Vuiton” dog toy undoubtedly and deliberately conjures up the famous [plaintiff's] marks and trade dress, but at the same time, it communicates that it is not the [plaintiff's] product … . [T]he juxtaposition of the similar and dissimilar-the irreverent representation and the idealized image of [plaintiff's] handbag-immediately conveys a joking and amusing parody. The furry little “Chewy Vuiton” imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag, which must not be chewed by a dog.

All in all, I would allow South Butt if they are really making a social comment.

But this case also has a twist. The Plaintiff has a “design patent” for element allegedly copied by Hilton. A design patent is a patent granted on the ornamental design of a functional item. Well doesn’t that just solve everything? Why don’t all clothing designers just get design patents? Well, mostly because they take forever, they are expensive, and because most apparel design patent applications will be rejected because they are not “new” in a pure sense. Design patents only make sense when you’ve got a very original design element (not a rephrasing of some past theme) that the designer plans to make use of from season to season.

Trade dress law mainly protects packaging–packaging that the public comes to associate with a particular company. But without any better weapon, fashion designers are using trade dress to protect against their imitators. That’s possible because the notion of packaging (which is what trade dress law protects) is quite vague. In one of the leading cases, the Supreme Court held that the décor of a chain of Mexican restaurants was a type of trade dress. Other cases have held that trade dress encompasses a product’s “total look and feel.”

Well, that was quite enough for fashion lawyers to jump in and claim essentially that an article of clothing is one big piece of packaging. And if that’s true, and if the public comes to associate that packaging with a particular line, then trade dress law should work in fighting knockoffs. It only works for one a line’s signature styles.

Later I’ll write about some trade dress cases I’ve brought against imitation fashion. But this post is about the latest example of the trend: Alexander McQueen’s recent lawsuit against Steve Madden for a particularly egregious shoe knockoff. You can see pictures in the formal lawsuit documents, which you can download here. But suffice to say, its a pretty blatant and exact rip-off. The thing to notice about the case is this: McQueen’s lawyers have to go to great lengths to describe the boot design as one that the public has come to associate with his brand (in the way they do a trademark). Otherwise, Madden would be free to copy. McQueen lawyers do this by talking about branding, promotion, press, etc. Here’s what the attorneys write:

“The Faithful Bootie Trade Dress is, in and of itself, highly distinctive, and has been so recognized by consumers and the fashion trade. In addition, as a result of the uninterrupted, and continuing, promotion and sale of the “Faithful Bootie” shoe, and the widespread media attention that has been devoted to the “Faithful Bootie” shoe, including photographs of celebrities such as Lindsay Lohan, Mary-Kate Olsen and Rihanna wearing the “Faithful Bootie” shoe, the Faithful Bootie Trade Dress has acquired distinctiveness, and, accordingly, has developed a strong secondary meaning among consumers and the trade, immediately identifying AMQ as the exclusive source of products bearing the Faithful Bootie Trade Dress, and signifying goodwill of incalculable value.”

Unfortunately, fashion designers who have been knocked off often can’t make this kind of claim. And even here, its probably a bit of a stretch to say the public associates this particular show with Alexander McQueen. Again, it’s a lot easier when what is copied is a signature style.