A common problem ailing the fashion industry is copyright infringement
over designs of clothing and footwear. Particularly, when retailers abroad
create a piece of clothing which he might consider artistic and unique in one
part of the world but in truth is already being protected under the Copyright
laws in another far flung part of the world. Since ignorance of the law is no
defense, these retailers have to pay the price, sometimes quite literally, for
something they thought innocent.
The Olem Shoe Corp. v. Washington Shoe Corp is one such case. Olem Shoe
Corporation (“Olem”) infringed Washington Shoe Company’s (“Washington Shoe”)
copyrights in polka dot and zebra stripe women’s rain boot designs. The
Eleventh Circuit Court relying on the certificate of registration determined
that Washington Shoe’s copyrights for polka dots and zebra-striped designs are
valid.
The question that arises here is of ‘willful
infringement’ and if in such a case the infringer is liable to pay additional
penalties. Infringement or active inducement of
infringement is willful when it is done deliberately and intentionally, and
with the knowledge of the existence of a copyright. The Eleventh Circuit
Court held that Olem’s infringement was not willful, and thus not subject to
enhanced statutory damages. The Court determined that Washington Shoe could not
establish willfulness on a theory of Olem’s actual knowledge, because “there is
no evidence that Olem knew of Washington Shoe’s copyrights and chose to violate
them.”
The case demonstrates that even simple designs may be
protected under the law. It also demonstrates that ignorance on the part of a
retailer will not protect him from copyright infringement liability.
