WASHINGTON — As new technologies come into play in the fashion world, so do new legal woes.
The U.S. International Trade Commission patent infringement case aimed at 17 American and European brands and retailers could stir alarm in the industry, according to legal experts, raising concerns it could set a precedent for greater litigation against the technologically advanced products it makes abroad and imports to the U.S.
The ITC case filed Monday is one of the largest ever against apparel retailers and brands. The petitioners, RevoLaze LLC and TechnoLines LLC, filed a complaint accusing such well-known companies as Levi Strauss & Co., VF Corp., Guess Inc., Gap Inc., Abercrombie & Fitch Co. and American Eagle Outfitters Inc. of patent infringement on certain imported laser-abraded denim garments and seeking a ban on those imported products.
RevoLaze is a laser-technology firm based in Westlake, Ohio, claiming to hold 29 worldwide patents for laser-inscribing methods that apply graphics and patterns on a variety of materials. It claims that a significant portion of its intellectual property uses the laser-scribing technology for fabrics such as denim. The technology is an alternative for controversial sandblasting or costly washing processes and is used in distressed denim jeans.
In its ITC complaint, RevoLaze asserted that the 17 brands and retailers are violating six technology patents covering several denim products. The company has also filed 17 lawsuits in U.S. District Court against each brand and retailer named in the ITC case. Other companies cited in the complaint include Diesel SpA of Italy, Eddie Bauer LLC, H&M Hennes & Mauritz AB, Roberto Cavalli, The Buckle Inc., Koos Manufacturing, Lucky Brand Dungarees, BBC Apparel Group LLC, Gotham Licensing Corp. and Fashion Box Group SpA.
Several of the brands and retailers declined to comment due to the pending litigation.
RevoLaze claimed it has developed the technology and associated equipment over the past 15 years through licensing with garment manufacturers, including VF Corp. (a named respondent), Sights Denim Systems, Taylor Togs Inc., Gear for Sports Inc. and Final Finish Laundry. But those licenses are no longer in force, the company claimed. RevoLaze also said it at one time, through subsidiaries, operated two denim jeans companies named Fractal Jean Co. and Fins Denim Co. that used the patented technology.
The filing seeks an ITC Section 337 patent infringement investigation. These cases can cut both ways for fashion companies — provide protection for intellectual property owners while putting brands at risk of legal action.
For patent and trademark holders, they can provide an effective tool for the industry to use in intellectual property protection. Louis Vuitton Malletier SA and Louis Vuitton Manufacturing Inc. won a trademark infringement case at the ITC in 2012 against an enterprise of U.S. and Chinese companies that was counterfeiting and importing large quantities of its products.
While Section 337 cases have been widely used in the electronics industry for decades, they have rarely been used by or against fashion companies. But several trade and intellectual property lawyers said they expect the cases to become more common because of advancements in technologies in the industry.
David Spooner, an international trade attorney at Barnes & Thornburg LLP, said the case “certainly raises concerns in the industry for no other reason than it is a statute that the industry has [virtually] no experience with.”
Spooner said he expects these types of cases to become more common in the industry due to more high-tech developments such as wearable technology coming onto the market and advances in fiber innovation.
“If you are the developer of those products, a 337 can be a tool to help you but it is also a blunt hammer,” he said. “So I’m sure most of the industry is living in fear of unwarranted 337 cases and having their containers stopped at the ports.”
Alan Behr, an attorney at Phillips Nizer LLP who chairs the firm’s fashion law practice and is a partner of its intellectual property law practice and corporate and business law department, said section 337 cases could become another “hidden cost” or collateral damage for sourcing apparel abroad.
“The fact that most garments are now sourced overseas, especially if you look at casualwear such as in this case, you know that you are putting yourself in the line of fire of 337 complaints if certain things occur,” Behr said. “If you import garments from overseas, you have this risk, especially if you are using technology ‘au currant’ and someone complains you are using their technology.”
He said distressed denim has become a big seller in the last few years, at the same time sustainability and the green movement have grown in the industry, spurring the search for alternatives to highly toxic and sometimes dangerous technologies or manufacturing processes.
“Sandblasting has been considered unsafe and several companies have pledged to not use it because it causes lung problems,” Behr said. “So companies have looked around for an alternative and RevoLaze claims it has that alternative with patents on the technology that use lasers to distress jeans.”
Shara L. Aranoff, a former ITC chair who is an international trade attorney at Covington & Burling LLP, said there have been about 930 section 337 cases brought before the commission over the past several decades, covering a range of products, of which fashion items are a small percentage.
“I would say if you look at the type of goods we see [in the few fashion-related cases], they do seem to be these sort of products that have had big popularity surges or fads,” she said, pointing to a case involving acid-wash denim and another involving Crocs shoes.
The ITC has jurisdiction over goods that “cross the border into the U.S.,” but not over goods made in the U.S., Aranoff said. If a company alleges patent infringement of a product made in the U.S. and decides to pursue a legal remedy, it must file a lawsuit in federal court.
She said the RevoLaze case is somewhat “unusual” because all of the named respondents are importers and retailers in the U.S., “not the actual companies that are producing goods or operating the equipment that is practicing the technology covered by the patents.”
She said that puts the 17 brands and retailers in a “somewhat difficult position.”
“It is harder for them to argue noninfringement because it is information they don’t personally have,” she said. “They will have to rely on information coming from their contract manufacturers or whoever is making the product…it makes it harder for them to defend themselves because they have to depend on facts coming from third parties not named in the litigation that don’t have the same incentive to cooperate.”
In yet another fashion show shuffle, @elleryland is moving its show in sync with the Paris couture calendar — though the brand is still keeping one foot on the city’s ready-to-wear schedule. Their runway show in January will coincide with the launch of a new strategy: designing two main collections each year instead of four, which will then be released in four drops. “As we all know, the system needs to change. We need to show sooner to give time back to artisans and designers to do what they do best — create,” said founder Kym Ellery. #wwdnews #wwdfashion (📷: @kukukuba)
@maxmara’s classic 101801 coat was the cornerstone of its pre-fall 2018 collection. The design team expanded the traditional double-breasted, kimono-sleeved style into a trapeze coat, lean belted styles and a peacoat and presented them in monochromatic looks – like the camel one pictured here. #wwdfashion #prefall18 (📷: George Chinsee)
The @cfda has shifted the dates of #NYFW, with Men’s showing on February 5 through February 7, and Women’s will directly follow, running from February 8 through 14. The preliminary schedule will be released on the CFDA’s web site in the next few days, but Mark Beckham, VP of marketing for the CFDA, revealed that @rafsimons will be back to close the men’s-specific part of the week with a show on February 7 #wwdfashion (📷: Kelly Taub)
@ferragamo is introducing a new space dedicated to the development of women’s and men’s leather good samples. The laboratory, which is created eco-friendly materials and designed to reduce the environmental impact of the manufacturing processes, will allow the company to expand its accessories offering through traditional artisanal approaches. #wwdfashion (📷: @aitorrosasphoto)
How does a “regular, degular, schmegular” girl from the Bronx, N.Y., become a Grammy-nominated artist with a certified platinum record in less than a year? Call it the @iamcardib come up. The 25-year-old has become a musical sensation, and the fashion world is taking note. “If I could describe her style I would say drama. She’s really into the dramatics,” says Cardi B’s stylist @kollincarter. See how Carter styles her bold and out there looks with the link in bio. #wwdfashion
“There is no formula. There is no guideline. I can watch Ted Talks all day, but there is no one who can advise me on exactly what it is I should be doing,” said @ronniefieg, CEO of @kith, in an interview with WWD’s @ariahughes at the brand’s new SoHo office in Manhattan. Head to WWD.com to see how Fieg went from hanging out in shoe stockrooms at 13 to building his own business. #wwdfashion (📷: @weston.wells)
@fearofgod and @maxfieldla have teamed up on a pop-up installation. The store, located in the gallery space across from Maxfield’s Melrose Ave location, is the site of the brand’s House of God pop-up in which Fear of God founder @jerrylorenzo has created a church-inspired installation. A dozen vintage church pews sit in front of an LED screen playing 90s gospel singers in an effort to re-create an environment akin to a Southern Baptist Church, Lorenzo explained. Read more about the pop-up on WWD.com #wwdfashion (📷: Jennifer Johnson)
Known for his sleek, sophisticated American glamour, Norman Norell is the subject of an upcoming exhibition at @fitnyc. “Norell: Dean of American Fashion,” which runs from February 9 through April 14, will feature approximately 100 ensembles and accessories. His best work is exemplified by the designer’s glittering “mermaid” gowns frosted with thousands of hand-sewn sequins – like the one pictured. (📷: William Helburn) #wwdfashion
For pre-fall 2018, @balmain didn’t let go of the glitz. A crystal embroidered baseball jacket priced at around $40,000 hangs in the “couture” section of the brand’s first men’s pre-collection. Sporting the words “Balmain Army” across the back, the item took around two months to make. “When it was completed, it was like Christmas, it was like, ‘It’s done, it’s exactly what I wanted,’” said Balmain’s creative director @olivier_rousteing during a tour of the collection in a Paris showroom on Monday. #wwdfashion