Virgil Abloh’s Off-White Adds New Design Patents to His Growing Arsenal of Interesting IP: Paper Clip Jewelry

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As Virgil Abloh’s attorney continues to go back and forth with the United States Patent and Trademark Office (“USPTO”) in an attempt to convince the national trademark agency that the red zip ties and quotation marks that Off-White uses on a board of its buzzing offerings act as indicators of where products are sourced (i.e., function as trademarks), the brand has added two new design patents to its growing arsenal. most robust intellectual property rights: those for “jewelry articles”. Not just any “jewelry,” the items at the center of the new patents are a bracelet made of jewel-encrusted paperclip-like designs and an earring made of two diamond-encrusted paperclip-like pieces.

A type of intellectual property, design patents provide protection for “visual ornamental features incorporated into, or applied to, a manufactured article” – i.e. “the configuration or shape of an article, the surface ornamentation applied to an item, or the combination of configuration and surface ornamentation.

An invention (or design) must meet two important requirements in order to qualify for patent protection, both of which seem relevant when discussing the specific paper clip jewelry at issue: it must be new and not obvious. This means that the design claimed in the patent must be new, “sufficiently different from what has been used or described before that it can be considered not obvious to a person of ordinary skill in the field of technology. related to the invention,” and must not be subject to public disclosure or commercial use more than one year before the filing date of your patent application.

Given the standards of novelty and non-obviousness that serve as prerequisites for patent protection, one would be forgiven for wondering how Abloh could obtain patents for jewelry designs that resemble paperclips, which in theory are anything but new. The answer to that lies in the details, literally. Abloh’s newly issued patents do not grant him exclusive rights to all bracelets and earrings made with designs that resemble paperclips (and certainly not jewelry made from real paperclips themselves). Instead, “the patents claim jewelry designs with paperclip-like elements” that are “studded with small jewels or rhinestones,” according to Sarah Burstein, design patent expert and professor at the University of law from the University of Oklahoma, which first reported on the patents. .

Patent Drawings for Abloh’s Earring and Bracelet

Burstein notes that the rights granted by the patents in play (D890,621 and D890,013) are limited by paperclip-centric designs that already exist. ” We must see [Abloh’s] in the light of the state of the art”, i.e. any evidence that the invention was already publicly known or available, in whole or in part, before the effective filing date of the patent applications concerned ( i.e. before 2018 and 2019). With this in mind, any claims of ownership and/or infringement by Abloh” should not cover, for example, DIY paper clip bracelets, as these were made and used before [Abloh’s] patent has been filed. (As for “how you would prove that in court or in front of the USPTO, however, that’s a different question,” according to Burstein.)

So what exactly could Abloh claim to be infringing if another party is making paperclip jewelry? The test in this regard will ultimately examine whether the hypothetically infringing product would appear to be “substantially the same” as Abloh’s patented design from the perspective of an ordinary observer. This is distinct from the pre-Egyptian Goddess, Inc. v. Swisa, Inc. the “point of novelty” test, which required examining the state of the art to determine where the “point of novelty” lay in relation to that prior art in the new design, and then determining whether the design allegedly counterfeit incorporated this point of novelty. In the hypothetical case under consideration, a significant part of the novelty item would almost certainly be the encrusted jewels, which Abloh mentioned of jewelry design last year, saying, “The idea is like the fine jewelry for all. It’s a crash – it’s a paper clip, but it’s also pavé diamonds made in a very specific way.

As for the continued adoption of mundane elements by the Off-White brand (and Abloh, himself), that’s hardly surprising; after all, the brand is famous for its existing designs. His graphic indicating the most famous source, the network of diagonal lines, looks almost exactly like the lines that appear on pedestrian crossings. The logo which consists of two horizontal arrows – which appears on various Off-White merchandise and for which Abloh holds trademark registration for use on clothing – is a common graphic that can be found on many boxes of packing/shipping. And the list goes on…apparently until the glare of paperclips.

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