It's that time of year again: suns out, guns out. When the
weather gets warm, we see far too many jorts and tank tops for my
liking. I've also noticed an increase in the number of people
sporting in America-themed tanks while sitting lakeside or enjoying
a cookout in the summer. Perhaps that's why Target was so keen
on selling this #Merica tank top:
One small problem...it allegedly isn't Target's original
Pictured in Target decked out in a #Merica tank top is Etsy
seller Melissa Lay. Ms. Lay claims that the design in her #Merica tank is her original design and
that Target copied it. Ms. Lay uses has a shop on Etsy and has been
using a screen printing machine in her garage to create and sell
unique tees and tanks for just over a year. I couldn't help but
browse her Etsy shop, and many of her designs are quite chic.
Apparently Target thought so too. Lay learned of Target's
fashion faux pas when her friends started sending her photographs
of a similar looking tank in Target brick-and-mortar stores. If you
looked at the photo above carefully, you're probably wondering
what the difference between Lay's shirt and the Target tank
is. The only measureble differences between
Lay's shirt and Target's tank is that the flag on
the Target tank is distressed and a different quality of fabric is
used. Lay's tank sells for $25, while Target's goes for
Lay apparently called Target's corporate offices to
complain, and was instructed by Target to write a letter detailing
her allegations. Lay did more than that; she did the American thing
to do and took to social media to bring attention to the matter.
She wrote in an Instagram post that "[s]mall
businesses are being copied everywhere with no leg to stand
on." Overwhelmed by the support and media attention she
received, she later posted that she "wanted to bring this open
to bring awareness, not necessarily to take legal action," and
that she is still deciding her course of action." Ironically,
she failed to #Merica in either post.
Kudos to Target for its response. Target made a statement that
it, "has a deep appreciation for great design and it has
always been our policy to respect the intellectual property rights
of others. We are aware of this issue and are in the process of
reaching out to the designer. We're continuing to look into
this matter and are in the process of removing the tee from our
While the copying of the #Merica tank doesn't constitute
trademark infringement, it does constitute copyright infringement.
Copyright is a form of protection provided to the authors of
original works of authorship, including literary, dramatic,
musical, artistic, and certain other intellectual works. Copyright
protection vests immediately upon creation, and copyright owners
can, among other things, prevent third parties from reproducing and
distributing copyrighted works.
While it looks like this intellectual property dispute will set
with the sun, it doesn't look like #Merica-themed garb is going
anywhere soon. The American flag summer fashion is just
getting started. In case you're into that, here's how to
DIY some flag-themed jorts:
The lawyers at Trademarkology provide trademark registration
services backed by the experience and service of one of the
nation's oldest law firms. Click
hereto begin the process of protecting your brand
name with a federally registered trademark.
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In Wasica Finance GmbH v. Continental Automotive Systems, Inc., No. 15-2078 (Fed. Cir. 2017), the patentee Wasica Finance discovered, among other things, the importance of using consistent terminology in the patent specification and claims.
While under attack for several years now, the patent infringement defense of laches was dealt a serious, and likely final, blow by the recent Supreme Court case of SCA Hygiene Products AB et al. v. First Quality Baby Products LLC et al.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
On April 6, 2017, the Federal Circuit reversed-in-part and affirmed-in-part the district court's judgment of infringement and summary judgment for non-infringement of The Medicines Company's ("MedCo") patents-in-suit.
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