Appearance Patents Of Popular Handbags Such As Shrimps Were Registered By Chinese Mystery People In The United States

Intellectual property disputes have become one of the most difficult issues in the fashion industry.

According to the relevant legal documents cited by The Fashion Law, a Chinese Guangdong woman named Minling Lin has obtained the appearance patents of two handbags from the United States Patent and Trademark Office (UPSTO). However, the design manuscripts of the two handbags are very similar to the two iconic handbags of the popular designer brands Culture Gaia and Shrimps in Instagram in the past year, It triggered speculation about the intention of the patent application.

In the past year, The Ark Bamboo Basket Handbag of Culture Gaia and Antonia Pearl Handbag of Shrimps have become the most popular designer brand handbags in social media, frequently appearing in European and American fashion bloggers and street photos. Through the secondary communication of Chinese fashion media and fashion bloggers, these handbags also have high recognition in China, and have certain market potential.

It is reported that it will take more than one year for the appearance patent application to pass the United States Patent and Trademark Office. But as early as January 2018, Minling Lin submitted a patent application for the design of the bamboo basket handbag. In September of the same year, she filed a patent application for pearl handbag.

In March 2019, Minling Lin successfully obtained the appearance patent of the bamboo basket bag, and has the right to legally investigate patent infringement. This month, the United States Patent and Trademark Office issued a design patent for the pearl handbag to Minling.

The patent application figure provided by Minling Lin shows that the semicircle outline and handle design of the bamboo basket handbag are the same as those of Culture Gaia, which was initially inspired by the ancient Japanese technology. The square outline of the pearl handbag, mesh beading, flat bottom and two top handles are almost identical with the product first launched by British designer brand Shrimps five years ago.

The left side is the patent sketch provided by Minling Lin to the U.S. Patent and Trademark Office, and the right side is the Culture Gaia bamboo basket bag and Shrimps pearl bag

However, the legal profession also pointed out that because the uniqueness of the patent obtained by Minling Lin is questionable, and the two designer brands have obtained considerable market recognition, Minling Lin will not actually take the upper hand in the patent infringement litigation that it may initiatively initiate. On the contrary, if questioned in the patent trial of the court or the United States Patent and Trademark Office, her related patent may be deemed invalid. So far, she has not filed an infringement lawsuit based on these two patents.

However, this still does not mean that Minling Lin cannot make profits through appearance patents. Sarah Burstein, a professor of the University of Oklahoma School of Law who specializes in intellectual property, told The Fashion Law that Minling Lin might want to take advantage of the fact that the patent trial and litigation process are very expensive for both the plaintiff and the defendant to benefit from quick solutions such as private negotiation, such as charging the defendant a certain fee to avoid formal legal proceedings.

In early years in China, some local enterprises used the first come, first served trademark system to preemptively register others' brand names and logos to obtain "ransom". It is not uncommon to sell to the highest bidder. However, in the newly revised Trademark Law, the principle of "use first" and the clarity of laws and regulations such as trademark adjudication that can be applied within five years of registration have also increasingly avoided malicious trademark rush registration.

At the end of last year, it was announced that the trademark registered by the Italian Chaopai Supreme Italia, which entered the Chinese market, had been revoked by the China Trademark Office. All kinds of products displayed by the brand in Chinese stores were not allowed to be sold in law, although Supreme currently has no registration documents in China, But this is a milestone victory for the legitimate Supreme from New York, the United States, in its fight against counterfeiting. According to the earlier report of Fashion Business Express, Supreme Italia opened its first store at No. 839, Huaihai Middle Road, Shanghai in March, and named the brand "Supreme Splendor Italian Brand" in Chinese.

However, it is extremely rare for Minling Lin to file a patent application in the form of an individual, which is different from those enterprises that used to rush to register European and American brand trademarks in China. This also makes people still confused about Minling Lin's motives. However, industry insiders speculate that Minling Lin will act again soon.

Some analysts believe that Minling Lin is obviously a lucky person in the process of dealing with the United States Patent and Trademark Office. According to past experience, because the patent law has strict requirements for novelty, the U.S. Patent and Trademark Office should not apply for a patent when the applied invention is obviously similar to other existing inventions.

The United States Patent and Trademark Office is known for its strictness. Previously, the WeChat official account LADYMAX reported the Off White patent application. The brand's patent application for the iconic red zipper was not smooth. In July 2018, Off White submitted the trademark application of the brand's iconic red zipper to the United States Patent and Trademark Office for review, but it was initially rejected by the agency in December. At present, the brand is still committed to applying for the registration of the trademark rights of "red zipper" for shirts, pants, headwear and shoes.

According to the United States Patent and Trademark Office, the definition of the trademark right of red zipper is full of potential problems. The zipper tie itself is functional, and functional products cannot be protected as trademarks. However, the element for Off White's patent application is a red zipper. The brand claims that red is part of the trademark, but people believe that this element is not unique in essence.

The rush to register patents for online red handbags not only surprised people, but also sounded an alarm bell for the industry's awareness of intellectual property rights. In fact, these designer brands face even more severe intellectual property protection war in China's Taobao ecosystem.

Previously, "How did Instagram affect Taobao's popularity?" In the article, fashion blogger and taobao shopkeeper Wang Lianliang observed that a number of imitations of European and American niche brands began to rise on taobao, including Shrimps and Cult Gaia. Most of these brands are designer brands that have just been established, and have not officially entered the Chinese market. They have neither offline shopping malls nor domestic mainstream e-commerce platforms such as Taobao, Tmall, JD, Youzan. Taking the Swedish niche brand Toteme as an example, its followers on Instagram are less than 300000.

European and American niche brands were found by fashion blogger KOL on Instagram, and then KOL spread to other platforms. Followers were affected, businesses smelled business opportunities, and then appeared on Taobao, which would push to potential customers according to the algorithm. In this way, they influence each other to form a close industrial chain.

When consumers browse, search, collect and purchase these brands on Taobao, they will be labeled as "European and American niche" by Taobao, and the algorithm will recommend more products of the same type. Most of them are not purchased on behalf of these brands, but hundreds of Taobao merchants buy the original version, and then fine tune it to the version that Chinese people like. The imitations produced by making the version are barely equivalent to selling after secondary creation.

The high threshold for buying authentic products requires overseas shopping or purchasing on behalf of others. The official website does not disclose shopping comments, which restricts domestic consumers to buy from formal channels, allowing Taobao imitations to take advantage of the situation. In addition, these designer brands have one thing in common, that is, in addition to brand value, the product itself is not cost-effective. If the brand itself is well designed and of high quality, adopts customized fabrics and three-dimensional tailoring, the cost of imitation will be higher and the profit will be little. The thrifty Taobao sellers look good at the photos taken by the popular brands in China, and there are many Instagram bloggers who are constantly looking for beautiful pictures. The clothes themselves are generally designed, and they are easy to be imitated from style to workmanship.

Therefore, Shrimps and Cult Gaia face not only the patent rush of the front end of the popular handbags, but also the problem of the proliferation of counterfeit goods at the end of mass consumption. The latter is obviously more difficult to control, and has a great risk of diluting the brand value. Such risks are a major destabilizing factor for a start-up designer brand.

At the "Shanghai Fashion Week to Promote the Development of Shanghai Fashion Industry" held last month under the guidance of the Shanghai Municipal Commission of Commerce and the Market Supervision Administration and co sponsored by Shanghai Newspaper Group and Oriental International Group, Liu Feng, director of the Intellectual Property Business Research Committee of the Shanghai Lawyers Association, said that there are many ways to protect brands, including design patents, copyrights Trademark rights, but the things protected are different. Patents protect beauty, design, fabric, etc., copyrights protect design drawings, trademarks protect future operations, and different methods need to be selected at different stages.

More and more designers and brands around the world have realized that the intellectual property issues that were previously ignored due to lack of funds and energy have moved from the edge to the center of public issues. At the same time, safeguarding intellectual property rights has also become an extremely complex undertaking, and even the German sports giant adidas, which has always been very tough in safeguarding intellectual property rights, has recently suffered losses.

Last week, the Second High Court of the European Union just announced that adidas' "three bars" logo is invalid as a trademark, and also supported the decision of the European Intellectual Property Office (EUIPO) to cancel the acceptance of the trademark in 2016, because the "three bars" lack uniqueness.

The court pointed out that the logo was not a pattern composed of a series of regular repeating elements, but a common symbol. The triple stripe logo was first registered on football boots by Adi Dassler, the founder of adidas, on August 18, 1949. Later, the brand registered this trademark in 2014, but the court now says that this is not enough to prove that the logo was first invented by adidas.

Mark Caddle, trademark lawyer of European intellectual property company Withers&Rogers, said that adidas failed to provide sufficient evidence to prove that when consumers saw three stripes on clothing, shoes or headwear, they would immediately associate such products with adidas.

Just like the strategic position of two popular handbags for start-ups, the three bars are more important than adidas. Earlier, several research institutions pointed out that it is the sign of three bars that adidas has. The identification cost of adidas is far lower than that of Nike, the competitor. The three bars have great strategic value for adidas.

Compared with the more complicated clothing appearance patent protection and plagiarism disputes in the fashion industry, the protection of clothing salient features by means of trademark law is the most basic and relatively reliable way to safeguard rights, which can protect the most basic name and brand logo of brands. However, the difficulty of trademark application lies in proving the uniqueness of the brand's symbolic elements, especially the pattern composed of common figures such as "three lines", while the luxury shoe brand Christian Louboutin needs to prove the uniqueness of red soled shoes to the court.

After Christian Louboutin filed a year long lawsuit against the patent of his red soled shoes to several European courts, the European Union Supreme Court announced in June this year that the trademark composed of the symbolic red and the shape of the shoes used by the brand was to some extent protected by EU law. It is worth noting that the symbolic red of Christian Louboutin is not fully protected by the law, because the brand can not prove the particularity of the color, and can only consider red and the shape of the shoes comprehensively, which has great limitations.

In the information flood of social media, brand symbolic elements and popular products are the most important brand assets. No matter luxury brands or designer brands, there is no turning back in promoting awareness of intellectual property rights and increasing investment in rights protection.