US govt to weigh in on H&M copyright dispute
The US federal government will be allowed to present oral arguments in designer Unicolor’s suit against fashion retailer H&M, the US Supreme Court has determined.
SCOTUS granted the motion of the US acting solicitor general, Brian Fletcher, for leave for the government to participate in oral argument as an amicus curiae, in an order published on Tuesday, October 12.
Background
The long-running copyright dispute centres on Unicolors’ allegation that H&M willfully infringed its IP by copying a design that the designer first produced in 2011, an argument upheld by the US District Court for the Central District of California in 2018.
But H&M appealed, arguing that Unicolors’ registration for the design should never have been granted because it covered 31 unrelated designs, and was consequently inaccurate.
In May 2020, the US Court of Appeals for the Ninth Circuit reversed the district court’s decision, finding that the lower court should have sought guidance from the US Copyright Office on whether these inaccuracies would have led to a refusal of registration. It also rejected the district court’s opinion that only evidence of fraudulent activity could lead to an invalidation of the registration.
Interpretation of ‘substantial interest’
In June this year, SCOTUS agreed to review the copyright dispute after Unicolors filed a petition for a writ of certiorari, arguing that the Ninth Circuit’s decision was flawed. It further contended that the ruling could threaten thousands of copyright registrations, which could be potentially exposed to validity challenges.
In September, Fletcher submitted that the US government be allowed to participate in the oral argument in this case as an amicus curiae (supporting petitioner); that the time allotted for oral argument be enlarged to 65 minutes; and that the US be allowed 15 minutes of argument time.
According to Fletcher, the US has a substantial interest in the court’s interpretation of these copyright provisions. “The Copyright Office is responsible for determining whether an application for a certificate of registration satisfies the Copyright Act’s requirements, 17 U.S.C. 410(a), as well as responding to judicial inquiries under Section 411(b)(2),” he wrote.
This latest development in the copyright dispute comes as SCOTUS’s impending decision in the case is eagerly anticipated by IP lawyers, due to its potential ramifications for copyright design owners.
Deborah Greaves, partner at Withers, told WIPR that the outcome of this case could provide some much-needed clarity in the fashion industry, which has been beset by copyright disputes over textile designs in recent years.
“Although the H&M case is limited to the specific interpretation of the validity of the copyright registration at issue, it is encouraging to see the Supreme Court take up another copyright issue arising out of the apparel and textile industry and offers hope that there will be a greater certainty of outcome for litigants in the future,” she said.
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