Scenario 1: You own a fashion manufacturing company that prides itself on providing discounts on legal knock-offs of designer label fashion merchandise. You have been selling a knock-off handbag originally by a famous designer. You have removed any trademarks from the handbag and marketed the purse with your own legally protected and registered trademark to prevent any confusion among the purchasers regarding the source of the handbag. Nevertheless, shortly after you began marketing this handbag, you received a cease-and-desist letter from an attorney representing the famous designer insisting that you immediately halt your sales of the handbag and account to the designer for any profits made from the recent sales. The attorney cites the Handbag US D575505 S1 United States Design Patent and says that the ornamental features of this handbag include: 1) the conspicuous lock with a key suspended on a leather strap; 2) the decorative stitching and rivets; and 3) the overall shape of the bag.
You know that design patents can be challenged, even after they have been issued, on the basis that the design is not novel, is obvious to a person of average skill in the art, or is solely functional. You are reasonably sure that the three ornamental features of the handbag, claimed by the famous designer’s attorney, are not novel in that they have all been created before and marketed.
Research the Internet to find examples of each of the features of the handbag claimed by the attorney. These examples will support your contention that the design patent claimed by the famous designer is invalid for lack of novelty. Please do not post any photos in your response, which may be copyright infringement. Instead, post links to any photographs or other information that you find on each of the claimed patentable ornamental features of the handbag. Also explain each source that you find through your research, in terms of how it helps your argument.
Scenario 2: Assume that you own a successful fashion design and manufacturing company and employ several high-level designers and managers to create your various clothing lines and collections each year. Your company sells only high-end fashion items and has had its creations legally copied and sold at discount stores in the past. As a result, you have instituted measures to maintain and protect the secrecy of your upcoming clothing lines and collections until they are available to customers in high-end retail stores. You do this to get ahead of the copyists so you can earn from the demand for your creations long enough to make a decent profit.
All of your employees, managers, designers, and vendors are under appropriate confidentiality agreements that forbid them from divulging any of your trade secrets on your clothing lines or collections. Your best designer quit a couple of months ago to go to work for one of your competitors. Recently, you found that duplicates of two of your clothing lines, still maintained as secret in your business, were being marketed by the competitor that hired your ex-designer.
You file a suit against your competitor and the former designer for trade secret theft. In that suit, you establish that both were liable for the theft of your trade secret on clothing lines. Your local prosecutor uses the evidence that you produce to criminally prosecute the owner of your competitor’s business and your ex-designer for the criminal theft of trade secrets.
Describe the civil remedies and criminal penalties that may be assessed against this pair of trade secret thieves. For each civil remedy and criminal penalty, describe what you think would be the proper measure of remedy and penalty in terms of the amount of money, the years of incarceration, the scope of any injunction issued, and so on.
