I will be speaking on February 20, 2019 at Berkeley Law at 12:50 in a Fashion and IP discussion and screening with my former Fordham colleague Prof. Susan Scafidi. We will be screening the recent film Fashion and IP.
The program is free and open to the public.
Here’s a report from last year of the Council of Fashion Designers of America on the problem of bad faith registrations of trademarks in China which discusses the pervasiveness of the problem, including the costs imposed on small and medium enterprise members, as well as the impact of serial squatters.
This report further underscores the importance of addressing tolerance of bad faith activities in China’s IP regime in current bilateral trade discussions as well as the need to recognize the significant improvements that are being made that have begun to address them. Amongst the many significant cases addressing bad faith registrations in the clothing sector was the Michael Jordan case in 2016, which was based in part on naming rights and was reported here. Another significant case from last year involving protection of trademarks and design elements that has significance for the fashion industry was Bayer v. Li Qing, which involved pirating of a Bayer design for its Coppertone lotions for pirate registrations, and Bayer’s assertions of a copyright interest in those designs to defeat the pirate’s assertions of trademark infringement in a declaratory judgment action involving the anti-unfair competition law, trademark and copyright laws. The case was also notable as the court did not suspend its decisions pending the outcome of trademark invalidity decisions.
The controversy over a decision by a Utah native, Keziah Daum, to wear a qipao to her prom stirred up a tweet storm over “cultural misappropriation.” The South China Morning Post reported that generally the response from China was quite different — it was an act of “cultural appreciation”, not appropriation. As often happens in this type of discussion, false assumptions are made about the insularity of any culture, including in matters of fashion.
The qipao was hardly a Han innovation, and is widely attributed to the Nuzhen people – a Manchu tribe. In the early 17th century, Nurhachi, the Manchu military strategist, unified the Nuzhen tribes and set up the Banner System. Qipao in Chinese may be literally translated as “banner gown”, for it came from the Manchu people who lived under the Banner System and used it to govern China. In fact, the Manchu domination over the majority Han people had been long resented by the Han, contributing to the 1911 revolution by Sun Yat-sen and reflected in the political slogan to “Overthrow the [Manchu] Qing and return to the [Han] Ming “(反淸复明).
Chinese minorities have contributed much to dress and culture in addition to the qipao. The Newark Museum in New Jersey has an excellent collection of Tibetan and Mongolian art, which also shows some other minority influences, such as in the clothing used in Star Wars by Padmé Amidala (see above). One can also try on Tibetan clothing if one wishes to further appreciate the clothing and its origins (see below).
One need not travel far to see evidence of cultural borrowings. Whenever a man wears a tie, he is following a tradition set by Croatians during the Napoleonic wars. Indeed, the French word cravate is a corrupt French pronunciation of Croate. The origin of the tie is a source of some pride to the many Croatians I have met over the years.
No rights are asserted in any of the pictures from Star Wars or the Newark Museum. The photograph above is the property of Mark Cohen.