Weaving fibers to form a fabric has been a part of human existence since ancient times. Weaving is the process of interlacing longitudinally oriented warp threads with horizontally oriented weft threads to form a woven fabric. Weaving is performed on a loom, a device arranged to hold warp threads under tension while allowing the weft threads to be sequentially added to them, to produce a fabric. The relative movement and positioning of the warp and weft threads during the weaving process results in a sequence of thread
placements that together form a pattern in the finished fabric. To change patterns, the sequence of thread placements must be modified, a traditionally labor and time intensive process. Through the centuries, looms have had a variety of configurations, but their basic function has remained the same.
Loom technology has seen a variety of innovations throughout history in a continuous effort to make fabric production faster, easier, and more cost-effective. The Jacquard machine invented by French weaver Joseph-Marie Jacquard (born 1752 in Lyon, France) revolutionized the field of weaving. His invention, which uses punch cards to represent a desired sequence of thread placements during operation of the loom, greatly reduced the labor involved in the process of weaving. Jacquard designed a device that would be attached to a loom to control the placement of individual warp threads according to a pre-set progression of steps represented and controlled by a pattern of holes in each of a set of punch cards. This allowed looms to not only produce complex textile patterns such as brocade, damask, and lace, but also to be changed quickly from one pattern to another. By simply exchanging a first set of punch cards for a second set of punch cards, the loom could be reprogrammed to produce a new fabric pattern. Jacquard looms are used for weaving all sorts of intricate patterned textiles. They could be programmed to weave a single pattern fabric or a combination of patterns with different colors. Continue reading “Programming Fashion”
From Home-Made to Store-Bought Fashion
Fashion is a way of creating new and distinctive designs that can be worn by different people in different settings. It is often a reflection of the times in which it is created, but it can also be influenced by, technology, culture, even religion. Before the mid-19th century, most clothing was home-made. Occasionally, a village dressmaker was available to make a made-to-measure dress. The wealthy often employed seamstresses who dealt directly, and often exclusively, with their patron. The rapid mechanization of fabric production led to the appearance of ready-to-wear stores that provided the middle classes an opportunity to move away from home-made garments.
Aniline dye printed fabrics were used for many of the garments that were produced in this period. They were woven according to a manufacturing method that caused the dyes to run down the surface of the fabric. This made the garments more textured and interesting. The process created fabrics that contrasted with the smoother, lighter-colored cottons and linens that were also popular at the time. Aniline dyes could also be applied to other materials to give them a more sophisticated appearance. One example is aniline colored velvet which was very popular through the 1890’s. It was made in a range of colors, from soft pink to dark red and sometimes bright purple. The Aniline colored velvet was a soft, comfortable fabric that clung to the body, revealing the wearer’s shape, and giving it an attractive drape. It was especially popular for evening dresses. Velvet was made in a range of textures, from fine to coarse. It was usually trimmed with delicate embroidery, lace, ribbons and beading. Continue reading “From Home-Made to Store-Bought Fashion”
Color My World: Aniline Dyes in Fashion
The past centuries have seen a variety of cultural and technological shifts, and the fashion world has followed suit. These changes have also had a profound impact on the way we dress. In the 19th century, the commercialization of newly discovered aniline dyes for printed fabrics had a profound impact on fashion. The use of these synthetic dyes changed the way we colored fabrics, allowing manufacturers to scale up production. Aniline dyes made it easy for manufacturers to print on a wide range of fabric types all with consistent hue and tone of the color between batches. This allowed for the reemergence of the dyeing industry, which was formerly languishing because of its long dependency on expensive naturally derived pigments. Continue reading “Color My World: Aniline Dyes in Fashion”
From Coal Tar to Couture: The Discovery of Aniline Dyes and The Effect Upon Fashion
Around 1856 an 18-year-old British chemist named William Henry Perkin changed the world of fashion forever. He had been performing experiments seeking to replace the natural anti-malarial drug quinine. Instead of the colorless powder he had expected, he found that oxidizing aniline, a coal tar derivative, produced a reddish powder containing something far more exciting: an intense purple. Fashion would never be the same! This discovery led to the wide commercial availability of low cost, brightly colored fabrics that would be available to all. It also marked the beginning of a hugely profitable business. Continue reading “From Coal Tar to Couture: The Discovery of Aniline Dyes and The Effect Upon Fashion”
Taking a Bite Out of the Brand?
By Brian Siff and Victoria Danta
Is imitation the sincerest form of flattery? Not according to brand owner Jack Daniel’s Properties, Inc., (“JDPI”), which owns the JACK DANIEL’S source identifiers for alcoholic beverages and other goods – most notably, whiskey.
For the better part of a decade, JDPI has been embroiled in a dispute with toy maker VIP Products LLC, (“VIP”), which makes humorous chew toys that allegedly parody well-known products. The toy shown below is at the center of this dispute, and features elements of authentic Jack Daniel’s® whiskey bottles and labeling, and dog-related puns, such as “BAD SPANIEL,” “OLD No. 2,” and “TENNESSEE CARPET”:
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VIP Chew Toy |
JDPI Bottle and Labeling |
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In 2014, JDPI accused VIP of trademark infringement and demanded that VIP cease all sales of the BAD SPANIELS chew toy. VIP then sued for a declaratory judgment, including a declaration of non-infringement. JDPI counterclaimed for infringement and related causes of action, including dilution of a famous trademark. The U.S. District Court for the District of Arizona applied a traditional “likelihood of confusion” analysis to JDPI’s claims, finding that confusion was likely on the basis of evidence that included actual confusion and a consumer survey. Notably, JDPI’s brand licensing program included pet products.
The District Court allegedly erred by not appropriately considering the First Amendment’s free speech protections and specifically, it did not properly consider the idea that the chew toy was a humorous parody, and that it was an expressive work entitled to protection.
In early-2020, the U.S. Court of Appeals for the Ninth Circuit ruled that the toy was, indeed, an expressive work protected by the First Amendment. Thus, VIP’s use of JDPI’s source identifiers was not actionable infringement, dilution or tarnishment. The Ninth Circuit held that the traditional likelihood of confusion test failed to account for the public interest when free speech rights are involved. The Ninth Circuit emphasized the toy’s humorous messages. Ultimately, the Ninth Circuit sent the dispute back to the District Court for further proceedings on JDPI’s infringement claims. Critics point out that the Ninth Circuit was the first anywhere to apply such strong free-speech protections, and that the holding conflicts with decisions from other Courts of Appeals (including the Second Circuit). Furthermore, some argue, the Ninth Circuit’s decision could encourage trademark infringement, by appearing to offer infringers protection if they can allege some minimal “humorous” aspect to their product.
When the dispute then returned to the District Court, the Court ruled for VIP, finding that the chew toy did not infringe upon JDPI’s rights, and that it was creative expression was protected by the First Amendment. However, the District Court encouraged the parties to appeal to the SCOTUS, as it believed the Ninth Circuit’s decision would create significant uncertainty.
Initially, SCOTUS rejected JDPI’s Petition for Certiorari, but JDPI was persistent; with the further urging of the District Court, JDPI repetitioned SCOTUS, and SCOTUS agreed to hear the appeal in late-November 2022.
The issues SCOTUS will resolve are as follows:
1) “Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims.”; and
(2) “Whether humorous use of another’s mark as one’s own on a commercial product is ‘noncommercial’ under 15 U.S.C. §1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.”
Various third parties have filed amicus briefs on the issue, including the American Intellectual Property Law Association, (AIPLA); Campbell Soup Company; Levi Strauss & Co. and Patagonia Inc.; and the International Trademark Association, (INTA).
Congress Overhauls FDA Cosmetics Authority in Year-End Appropriations Bill
On December 23, 2022, Congress significantly expanded the FDA’s regulatory authority over cosmetics as part of its year-end Consolidated Appropriations Act of 2023, the first major statutory change to the Food, Drug and Cosmetics Act regarding the regulation of cosmetics since 1938. Passed with bipartisan support and garnering industry approval, the Modernization of Cosmetics Regulation Act contains a number of key provisions, requirements and dates for compliance.
To read the full text of this Duane Morris Alert, please visit the firm website.
Activist Greenwashing Case In D.C. Runs Aground
“Greenwashing,” a topic of frequent discussion, actually has dictionary definition. According to Merriam-Webster, greenwashing is “the act or practice of making a product, policy, activity, etc., appear to be more environmentally friendly or less environmentally damaging than it really is.” A trial court in the District of Columbia recently dismissed a greenwashing case brought by an environmental activist group against a major beverage producer, making some interesting findings in the process. Earth Island Institute v. Coca-Cola Co., No. 2021 CA 001846 B (D.C. Super. Nov. 10, 2022). Continue reading “Activist Greenwashing Case In D.C. Runs Aground”
Sports Teams Should Take Care When Choosing Sponsorship Partners After FTX’s Collapse
The dramatic collapse last week of the cryptocurrency exchange FTX will also affect those teams, arenas and other sports companies that have naming rights and sponsorship agreements with FTX.
When a sponsorship partner undergoes a dramatic collapse like that suffered by FTX last week, sports teams that have partnered with the company for naming rights and other sponsorship agreements suffer losses on multiple fronts. First, of course, is the loss of the contractually guaranteed income that the team has taken for granted when budgeting for years to come. But beyond that is the reputational harm. Sports is about winning and losing, and no team wants to be associated with a loser.
To read the full text of this post by Duane Morris partner Alexander Chester, please visit the Duane Morris Sports Law Blog.
FTC Publishes Proposed Changes to Guides Concerning the Use of Endorsements and Testimonials in Advertising
The Federal Trade Commission (FTC) has announced proposed changes to its Endorsement Guides, 16 CFR Part 255, which assist entities in conforming endorsements and testimonials in advertising to the requirements of Section 5 of the FTC Act. FTC continues to review the guides, first published in 1980, as part of its ongoing regulatory review process.
To read the full text of this Duane Morris Alert, please visit the firm website.
INFORM Consumer Act Designed to Curb Counterfeits
In March 2021, the Senate reintroduced a revised version of a bill calling for online retailers to publish specific, verified information concerning high-volume third-party sellers of consumer products for their customers. The Integrity, Notification and Fairness in Online Retail Marketplaces (INFORM) for Consumers Act is directed toward putting an end to the online sale of stolen, counterfeit and unsafe consumer products.
In particular, online marketplaces that include high-volume third-party sellers would be required to authenticate vendors’ identities through essential identification and contact information in the hopes of preventing not only anonymous online sales of counterfeit goods, but also preventing organized retail crime rings from stealing from stores and reselling items online.
To read the full text of this Duane Morris Alert, please visit the firm website.