INTELLECTUAL PROPERTY IN CLOTHING AND FASHION BRANDS All three defendants signed non-competition agreements pursuant to which they agreed to: (1) not to compete with Nike during and for a period of one year following their employment; (2) not to use or disclose any of Nike’s confi dential information and to return all copies of such information upon leaving Nike’s employment; and (3) not to solicit other Nike employees away from Nike to a competitor. In addition, the complaint alleges that defendants also signed employee invention and secrecy agreements, by which each of them “assign[ed] to Nike all…inventions… conceived” during his employment term with Nike relating “in any way” to Nike’s “business…or products.” Defendants further agreed to “disclose promptly and in writing to Nike all [such] inventions … conceived or made by me during the term of my employ-ment with Nike whether or not such inven-tions are assignable under this Agreement.” Nike claims the three designers stole a “trea-sure trove of Nike products designs, research information and business plans” in an effort to market themselves to Adidas, and that Nike will suffer irreparable harm in the form of lost market share, lost sales, and lost goodwill due to the actions of its former employees. Ultimately, the parties came to a confi den-tial settlement agreement. However, this case demonstrates the measures that fashion companies take when protecting against the exposure of confi dential information consid-ered valuable to the company’s success. Patent law, and in particular, design pat-ents, is another area of intellectual property law that offer some protection to fashion designers. According to the USPTO, “a design consists of the visual ornamental character-istics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the confi g-uration or shape of an article, to the surface ornamentation applied to an article, or to the combination of confi guration and surface or-namentation.” In the last few years design pat-ents have become more popular as a method of protecting fashion designs. In Lululemon Athletica Canada v. Calvin Klein, Inc. , 7 certain design patents were at issue, specifi cally pat-ents protecting the elastic waistband around Lululemon’s best selling yoga pant named the Astro Pant. Lululemon alleged Calvin Klein had copied its design patent. Patent case law 36 VIRGINIA LAWYER | April 2019 | Vol. 67 | INTELLECTUAL PROPERTY LAW involving fashion designs is rare, so this case could have been a game changer in the fash-ion industry. We do not know how the courts would have ruled, because the parties reached a confi dential out of court settlement. The fashion industry also intersects with criminal law when it involves the prosecution of those buying and selling counterfeit goods. Counterfeit or “knock off ” luxury goods cost the U.S. economy up to $250 billion in lost revenue every year. Most illegal distributors are caught selling online. Online retailing giant Amazon now provides a brand registry which provides a streamlined process for brand owners to fi nd and report IP rights violations. A signifi cant case involving the coun-terfeiting of fake purses is United States v. Smatsorabudh 8 , that was handled in the Alexandria Division of the Eastern District of Virginia. For two years, the defendant, Praepitcha Smatsorabudh, an Arlington resident, ran an elaborate scheme to defraud U.S. department stores in 12 or more states. Smatsorabudh would purchase authentic brand name luxury handbags from various department stores at their retail price, and then return to the stores later with counterfeit bags she had purchased from overseas. After “returning” the counterfeit bag, Smatsorabudh would then sell the authentic bags online for thousands of dollars. The Department of Homeland Security suspected Smatsorabudh was importing counterfeit bags from Hong Kong and China after discovering that she received 32 inbound express ship-ments from Hong Kong between October 2014 and November 2015. DHS searched Smatsorabudh’s email address pursuant to a warrant and found several emails between Smatsorabudh and individuals in China discussing the sale of counterfeit purses, and a search of Smatsorabudh’s Arlington apartment produced multiple authentic and counterfeit designer handbags. A criminal complaint was fi led in May 2016, alleging that Smatsorabudh violated 18 U.S.C. §1343 (Wire Fraud). The complaint alleged Smatsorabudh defrauded more than 60 department stores in 12 states out of a total of more than $400,000, according to the U.S. Attorney’s offi ce. Further, Smatsorabudh fl aunted the stolen purses on an Instagram account named RichGirlsCollection and sold goods on an Fashion IP continued on page 53 www.vsb.org