The highly competitive fashion design market
Hello, this is Song Dong-ho General Law Firm. The fashion design market is highly competitive. It is said that in order to be noticed, not only skill but also luck is required. Fashion design itself is often seen as a continuation of existing designs, so it is not easy to be recognized as a copyright. So even if a unique design is announced, an imitation may come out soon. That’s why many fashion designers struggle.
A sunglasses designer, who did not appear in a Google search called On Davis, drew attention in 2001 with a case with Gap. On Davis announced a sunglasses design called “Onoculli Designs”. These sunglasses have a unique design that puts a metal disk or plate instead of a lens in a frame made of gold, silver, or copper so that the other person cannot see the wearer’s eyes. On Davis started selling on the street in 1995. On Davis filed for copyright on his design in 1997, about four years before the lawsuit.
On Davis’ Intellectual Property Litigation
In 1996, before a copyright application was filed, Gap featured a model wearing sunglasses designed by On Davis while filming a commercial series. Perhaps many of you have implicitly watched this Gap’s commercial series. This ad series, which was created with the intention that people of various lifestyles would like to wear Gap clothes, drew a lot of attention, and the main model in this ad was wearing On Davis sunglasses. Upon discovering the ad, On Davis started a lawsuit.
At the first trial in 1999, the court upheld Gap. Among the many reasons the courts came up with was to hold On Davis liable for failing to file a copyright application on time. In other words, On Davis applied for the copyright, but did not register it when it started selling on the street in 1995, and did not apply for the copyright in 1997 until Gap used it in 1996. But On Davis did not stop there and appealed again.
On appeal in 2001, the court upheld On Davis. The court found that Gap used On Davis’ design products for commercial purposes and that On Davis’s work could be considered a work of art subject to copyright protection. We also noted that the proportion of On Davis’ glasses in the advertisement was overwhelming, and that On Davis did not receive a proper copyright fee because people did not regard it as On Davis’s original work because it appeared in the Gap advertisement. Of course, the lawyer who was litigating presented numerous printed and photographic evidence to prove that On Davis was being sold commercially and recognized for its original design before Gap was used in advertising.
In the end, On Davis won the case, but as a copyright attorney, I would like to emphasize the lesson in how important it is to file a copyright application on time and right, no matter how trivial in this case, if it is subject to copyright protection. If On Davis had applied for a copyright right away when he started selling his sunglasses on the street, it would have been a simple case without going to an appeal.
If you have any questions about copyright or copyright infringement lawsuits, please let us know at any time.