Monday, February 2, 2015

A Dotty Issue

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.

-- Nayanika Singhal