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Star Athletica vs. Varsity Brands: Supreme Court Rules on Copyrightability of Apparel Design

The Supreme Court of the United States’ decision in Star Athletica, L.L.C. v. Varsity Brands, Inc. could result in increased opportunity with respect to the applicability of copyright law as it relates to fashion and apparel, a historically uncertain area of intellectual property law. In 2010, Varsity Brands, an apparel manufacturer, sued Star Athletica, another apparel manufacturer, alleging copyright infringement of its registered designs on cheerleading uniforms. At issue in the case was the exclusion of copyright protection under the Copyright Act of 1976 for a “design of a useful article” that cannot be separated from the article’s utilitarian aspects. The Court was asked to decide the correct test for determining whether the graphic features of colorful stripes, zigzags and chevrons on Varsity Brands’ cheerleading uniforms could be identified separately from and are capable of existing independently of the uniforms themselves and are thus eligible for copyright protection. On March 22, the Court articulated and applied the test for separability. The Court ruled in favor of Varsity Brands, deciding that the design features are separable from the uniforms themselves under the Court’s test. This decision confirms that copyright protection is available to some degree for the fashion and apparel industry (although not for the cut, shape, and pattern of garments) and settles the question of what test will be used to determine whether certain elements of clothing designs are eligible for copyright protection.

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Consultation Period for Rules of Procedure for the Unified Patent Court (UPC)

Practices: Intellectual Property

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On 25 June, 2013, the Preparatory Committee for the EU Unitary Patent System published its draft Rules of Procedure for the Unified Patent Court. U.S. and international companies can now comment on the rules. Read the alert to find out how. 

The Committee is now soliciting public comment through 1 October, 2013. Comments should be submitted to the following address:

As we have discussed previously, the new Unitary Patent Court and its Rules of Procedure will substantially influence European patent litigation strategies for plaintiffs and defendants. Certain rules will be particularly important to U.S. and international companies. These include rules related to bifurcation, stay and injunctions, opting out of UPC jurisdiction, interplay between EPO oppositions and UPC revocation, and costs of proceedings and damages.

For questions about how the new EU System and its Rules of Procedure will impact your business or how to present comments to the Committee, please contact your usual Ropes & Gray attorney or one of the following Ropes & Gray attorneys: Anita Varma, Richard McCaulley, and Edward Kelly.                         

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