Los Angeles-based accessories brand, Marie Turnor introduced its slouchy leather lunch bag clutch in 2009, and despite its simple design the bag created quite a buzz - ending up in the New York Times style section in July 2011 and on the arms of quite a few street style stars. Jil Sander, under the creative direction of Raf Simons, subsequently debuted its own version, a leather lunch bag in black for $630 and a coated-paper one in the regular brown for $290, on the runway in February 2012. Several other versions have since emerged.
With so many copies floating around, we were prompted to wonder, much like we did with the Cartier juste un clou bracelet, is there anything warranting protection in the equation here?
Because the item at issue here, the lunch bag clutch, is largely utilitarian in nature, copyright protection is likely out of the question altogether, but assuming its not, the originality factor may actually be on Marie Turnor's side. As you may know, for purposes of copyright law, originality is a low bar. According to relevant case law, the work at issue must possess “at least some minimal degree of creativity ... with the vast majority of works making the grade quite easily as long as they possess some creative spark, no matter how crude, humble or obvious." Still, it feels a bit wrong to provide protection for a slightly altered version of a classic lunch bag, no?. If we were to consider patent protection, the bag stands a better chance, as utilitarian items are welcomed. The hurdle here, however, is whether the bag meets the patent requirement of non-obviousness.
It is pretty clear that simplicity and the lack of any great amount of novelty is what is appealing here; the appearance of a classic lunch bag but in a more durable and luxurious form. With this in mind, how obvious is too obvious, and does the transformation here (hypothetically) warrant protection?