For fashionistas loyalty to a brand is proved by proudly wearing the logos of their favourite brands or of the brands that sponsor them. At times (think Balmain), they profess their allegiance by considering themselves as part of an army. Yet nothing announces that you're part of a genuine army like a classic camouflage print.
Camouflage patterns have perennially been in and out of fashion, but, quite often and for different reasons, they've been in and out of the courts. The latest lawsuit regarding a camo pattern was filed last week in the federal court in Georgia: Columbus-based Jordan Outdoor Enterprises ("JOE") filed a suit against Kanye West's Yeezy Apparel, LLC ("Yeezy") brand (Jordan Outdoor Enterprises, Ltd. v. Yeezy Apparel, LLC et al, 4:18-cv-00053).JOE claims Yeezy Season 5's garments and accessories (hoodies, pants, high heels and men's boots) feature elements lifted from its own distinctive camo prints and are "substantially similar" to the patters integrated in the garments by its hunting gear company, copyright-protected Realtree®.
According to the suit, the prints are "among the most famous and well-known camouflage patterns in the camouflage industry in the United States and throughout the world".
It is somehow difficult to disagree with this statement as the Yeezy designs seem to replicate images of trees and woods that can be easily spotted in the Realtree Xtra® Under Armour garments or on the NFL Baltimore Ravens Joe Flacco Realtree Replica Jerseys.
Most of these items are all over the Internet and it is easy to stumble upon them on huge retailers such as Amazon as well.
So it is easy to understand why the company is seeking injunctive relief (that would imply Yeezy to cease all manufacturing, marketing, and sales of the allegedly infringing products) and monetary compensation.
Past legal disputes about camouflage patterns may help sorting things out in this case: five years ago Canadian HyperStealth Biotechnology Corp., known for its work with over 50 countries to develop camouflage patterns for their military and police forces, sued Digital Concealment Systems, in the United States District Court for the Middle District of Georgia, Columbus Division, as Digital' "A-TACS FG Camo" pattern looked similar to HyperStealth's designs.
Digital cited independent creation, but it was proved that Digital's IP address had been a top 30 visitor to HyperStealth's website in the three months before Digital's "A-TACS FG Camo" pattern was created. Besides, sixty-one megabytes of information were downloaded to Digital's IP address over the course of 124 visits for the three months prior to Digital's creating its A-TACS FG Camo pattern in October 2011. The other point in this case was identifying whether specific protectable elements of different camouflage designs could be found in one accused infringing design.
Jordan Outdoor Enterprises may investigate IP addresses and check if anybody behind Yeezy was a frequent visitor; for what regards the distinctive elements of its camouflage patterns, well, being based on precise photographs of woods, foliage and trees rather than on an abstract patterns Realtree's prints can be defined as distinctive and therefore protectable.
Another case that may help Jordan Outdoor Enterprises is the one regarding the U.S. Navy. A while back the latter set to have a registered trademark on a pixelated black, gray and navy blue design - the NWU 1 pattern - used on its uniforms.
The United States Patent and Trademark Examining Attorney stated that, being functional the pattern could not be a trademark (the federal statute that governs trademark law prohibits the registration of a mark that comprises any matter that, as a whole, is functional); the Trademark Trial and Appeal Board (TTAB) reviewed this decision, considered the existence or absence of a utility patent disclosing the utilitarian advantages of the design, and of advertising material in which the originator of the design highlighted the utilitarian advantages of the design. The TTAB eventually could not find any utility patents for the Navy's fabric design.
The TTAB ruled that the fabric design had actually acquired the necessary distinctiveness in the eyes of the public and was protectable as a trademark.
In this case there is a trademark involved rather than a copyright issue, but the same principles may be applied to Realtree's design, considering that they are easily recognisable and indentifiable and therefore distinctive.
It remains a mistery why Yeezy opted to copy such a well-known brand rather than opting to collaborate with it, when other companies chose legal collaborations with Realtree (besides, what's the logic of producing more clothes with these patterns since they are so popular and easy to find and buy?).
In the same way, in 2013 Vans OTW went down the collaborative route and released a capsule with Hyperstealth Biotechnology Corp. that included camouflage shoes, packs and apparel with the distinctive Hyperstealth's camo patterns.
While we don't now how the JOE Vs Yeezy lawsuit will end, there's definitely a lesson to learn here for Kanye West: if he wants to be lazy when it comes to design his garments and accessories, he could join forces with a company that has more experience than him, rather than lifting entire designs from them. Hopefully, this misadventure has taught him that camouflage may protect animals from predators, but it doesn't protect a lazy designer from copyright infringement lawsuits.
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