Following what we can only assume was a successful first run of its lunch bag-style pouch, Zara has re-released it. The Spanish fast fashion giant began offering the bag not long after CELINE showed it on its Spring/Summer 2013 runway, after Raf Simons showed it on Jil Sanders' F/W 2012 menswear runway. Well, it turns out, someone did it before Raf (who was still at Jil Sander for F/W 2012). Los Angeles-based accessories brand, Marie Turnor (which is designed by Beth Goodman) introduced a slouchy leather lunch bag clutch in 2009, and it created quite a buzz - ending up in the New York Times style section in July 2011. While we previously addressed the lack of availability of copyright protection for the bag, we left the design patent inquiry open. Should Goodman have applied for a design patent for this style? Well, considering the fact that her brand is still largely centered around the popular lunch bag design many seasons later, patent protection would have been a good idea, as it would have allowed her to prevent or address a lot of the copies. But could she have successfully patented the bag? That's the real question.
So, you may or may not know that in order for a design to be governed by patent protection, it must be: novel, useful and non-obvious. Novelty and utility are pretty straight-forward inquiries, but what about non-obviousness? We turned to our trusty design patent expert, Sarah Burstein, a professor at the University of Oklahoma College of Law, about this inquiry. She told us: "If there is a pre-existing lunch bag in precisely the same shape but made of a different material, I'd say that this design should be deemed 'obvious.' But that's what I think the law should be—not what it currently is." So, what is the law? According to Burstein: "Under the current law, to determine if a design is obvious, a court (or the Patent and Trademark Office) uses a two-part test. The first part is the identification of a proper 'primary reference.' This means that the court (or patent examiner) must find a pre-existing design with "basically the same appearance" as the leather lunch bag. If there is no primary reference, the inquiry is over — and the design will be deemed non-obvious." The second prong of the test is a "doctrinal mess" (Burstein's words) that is best saved for another day.
To keep things simple, if we go by Burstein's initial statement: "If there is a pre-existing lunch bag in precisely the same shape but made of a different material, I'd say that this design should be deemed 'obvious.' But that's not what [the law] currently is," this suggests that Goodman may have had a chance to protect her lunch bag design. Either way, she didn't and since a design patent application typically is filed just before a product is taken to market, she probably never will. So, the fact that Raf and Celine designed their own versions after her and Zara created one, well, it is perfectly legal.