The majority of technology and e-commerce platforms have been investing in research and development in the fashion tech space for a numbers of years. In 2017, Amazon began developing a fashion design-specific AI initiative, which creates garment designs that can then be physically manufactured by humans. In developing this initiative, the question of became a predominate concern.

This past year, the United States Patent and Trademark Office (USPTO) and other trademark offices around the world, began to assess the considerations in naming a . DABUS, which is short for “Device for the Autonomous Bootstrapping of Unified Sentience”, is an AI system that was listed as the inventor in this patent application. The USPTO issued a decision refusing to award the patent on the basis that American patent law requires that an inventor be a natural person – a requirement that is not met by AI. The that interpreting patent inventors to encompass machines would “contradict the plain reading of the patent statutes that refer to persons and individuals”.

With tech giants like Amazon growing and expanding their reach in the fashion industry, it is not surprising that initiatives such as have come to fruition. Though the USPTO rejected DABUS as an inventor, questions still remain as to whether AI as an inventor may be accepted in other jurisdictions, specifically in Canada. And if so, how will AI designers impact the current traditional landscape of how human designers and natural persons currently create and disseminate their designs with retailers and in the fashion industry more broadly?

With the current pandemic encouraging retailers to grow their online presence, it will be interesting to see how the global fashion landscape recovers, pivots, and hopefully innovates, from the opportunities that may now be more readily available in its intersection with technology.

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

The post The Rise of Fashion Tech and its Impact in the IP Space appeared first on IPOsgoode.

The claimant, Response Clothing, designs and markets various pieces of clothing. The defendant, Edinburgh Woollen, is a major clothing retailer with about 400 stores in the UK. Between December 2009 and 2012, Response Clothing provided Edinburgh Woollen with various women’s tops made of a jacquard fabric. This jacquard material consists of wave-like designs that are woven into the fabric. When Response Clothing increased the price of the tops sold to the defendant in 2012, Edinburgh Woollen decided to change suppliers. The defendant provided the new supplier a sample of Response Clothing’s top and has changed suppliers various times throughout the last five years while maintaining the same wave-like jacquard design. As a result, Response Clothing claims that copyright subsists in its fabric’s design, either as a graphic work or as a work of artistic craftsmanship as per section 4 of the (the CPDA). Given the nature of Response Clothing’s relationship with Edinburgh Woollen between 2009 to 2012, Response Clothing further claims that it is the owner of that copyright and that all other supplier designs of the wave-like jacquard design are both primary and secondary acts of infringement.   

Though the Court concluded that the definition of a graphic work could not be extended to include a fabric design, it was established that the creation of the wave-like jacquard design qualified as a work of artistic craftsmanship. The Court concluded that the wave-like design required skillful workmanship and produced aesthetic appeal. Additionally, at paragraph 64 of the decision, the Court provided the following guidance with respect to the definition of artistic craftsmanship in the UK:

[…] (i) it is possible for an author to make a work of artistic craftsmanship using a machine, (ii) aesthetic appeal can be of a nature which causes the work to appeal to potential customers and (iii) a work is not precluded from being a work of artistic craftmanship solely because multiple copies of it are subsequently made and marketed.

Having concluded that copyright existed in the wave-like fabric design, the Court determined that the garments sold by Edinburgh after 2012 copied a substantial part of Response Clothing’s design, amounting to secondary infringement contrary to section 23 of the CPDA.

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

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The applications cover a wide range of goods and services, including printed matter such as educational materials and activity books, clothing, campaigning, charitable fund raising, education, training and sporting activities, and social care services including emotional support groups.

Since officially stepping down from their Royal duties last month, the couple has been working on branding themselves outside of their royal appearances. In addition to the international trademark applications, the couple has also recently launched an and . However, alongside the opportunities that may be available for the Royal couple, Harry and Meghan may face difficulties in successfully registering these marks and protecting their brand. 

An was filed with the European Union Intellectual Property Office to trademark a number of goods, including toiletries, jewellery, luggage, sporting articles, beer, and alcoholic beverages, using the mark SUSSEX ROYAL. The applicant, Ui Phoenix Kerbl, appears to be an Italian designer based out of Bolzano, Italy. Since the Royal couple’s international filings, have been filed and made available on WIPO, seemingly unrelated to the Royal couple and their brand.

In addition to the growing number of individuals applying for registration of the SUSSEX ROYAL mark and the potential for oppositions to the couple’s applications, Harry and Meghan seem to have filed their WIPO applications past the . Given that both international applications claim priority to the UK applications from June 21, 2019, Harry and Meghan had six months, until December 21 2019, to file their applications with WIPO. If questions do arise with respect to the date of the international filing, further difficulties may present themselves given the number of individuals who have filed a national trademark application with their respective jurisdiction.

In seeking to protect their brand, the Royal couple is working towards remaining members of the Royal family while having financial independence. If the applied-for marks are successful, it is estimated that Harry and Meghan could make as much as in their first year by tapping into the profitable North American market. Further, it is suggested that the use of the SUSSEX ROYAL mark on various products could “

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

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A patent grants the owner of the patent the sole right to make, use, and/or sell the invention.  By giving these rights and allowing patent owners to profit, patents arguably provide incentives for investing in research and being innovative.

Currently patents have temporal and geographical boundaries, which means, for instance, if a patent is obtained in the US that patent is not valid in Canada unless a patent application is also filed with the Canadian patent office and is approved. The cost of patenting a product is quite high, particularly if considering obtaining patent protection at global level and the process is time consuming. Gutierrez argues that a global patent system can overcome these problems and will promote innovation.

He further "in today's world of universal connectivity, global business and collaborative innovation, it is time for a world patent that is derived from a single patent application, examined and prosecuted by a single examining authority and litigated before a single judicial body. 
 
A harmonized, global patent system would resolve many of the criticisms leveled at national patent systems over unmanageable backlogs and interminable pendency periods".

Clearly the idea of having a single global patent system is appealing to giant corporations such as Microsoft whose products are manufactured globally. Having such a system will significantly reduce cost, will save time, and will make it easier to handle infringement issues. However, to critics, Gutierrez's arguments are not convincing enough.

Gene Quinn, Patent Attorney & IPWatchdog Founder, that a global patent system will hamper local and small businesses. He argues that, "what Microsoft wants is to kill software patents so that they cease to be punished for infringing patents owned by substantially smaller businesses who had the audacity to invent first and seek a patent". It is noteworthy that Microsoft was recently  in Texas for patent infringement regarding its Word application. Furthermore, according to another critic, Ron Katznelson, Gutierrez to explain the cause of the deficiencies in the current system and fails to address how harmonization might help. Ron Katznelson also supports Quinn's view and calls harmonization an "illusory" myth, which is "to abolish the American legal system".

Other critics have also raised their concerns regarding a global patent system; , by comparing patent harmonization to attempts to harmonize Copyright laws, states that harmonization would make it more difficult to realize the innovation process and would benefit those who "benefit most from being able to abuse such monopoly rights"; argues that such a system will make it easier for patent trolls to sue for damages; and states that Gutierrez is asking the world to adopt US patent laws.

Another criterion that concerns me is the position of developing countries.  Many in these countries do not have sufficient assets to obtain expensive patented products or to get a licence for them.  Thus, arguably, a global patent system - unless implemented in a way to address this problem - may lower living standards and hinder research.

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