While VPL, the New York-based undergarments-meets-fashion garments brand, was in the midst of losing Victoria Bartlett, its founder and creative director, earlier this month, Reebok was on the receiving end of a design patent registration. The adidas-owned sportswear brand was awarded a design patent for the “ornamental design for [a] brasserie.” The design at issue: One of its more modern takes on the classic sports bra, a number of which have been revamped (and given a more fashion focused look) and released by the brand over the past couple of years in particular.
If Reebok’s newly protected bra looks somewhat familiar, it is likely that you’ve seen VPL’s signature Insertion Bra. A staple item from season to season and a strong brand-building tool for VPL since its launch in 2003, the Insertion Bra is known for its “colorblocking, grosgrain and elastic banding, and signature seaming.” And chances are, while its name may not be familiar, you have seen it before. In addition to stocking at major retailers like Nordstrom, Net-a-Porter, Bloomingdales, and Saks, amongst others, the Insertion Bra has been featured in Vogue, InStyle, WWD, and Elle, as well as on episodes of Gossip Girl, Glee and Stalker, etc. In short: this bra has achieved a certain level of success that has made it rather visible to those interested in fashion and those on its periphery, as well.
With this in mind, Reebok’s newly issue patent may come as a bit of a surprise. However, let’s consider exactly how the design patent process works. In order for a party to receive patent protection for something, it must be use, novel, and non-obvious, to put it simply. Speaking about the novelty requirement (which would seem to be the issue here given the similarities between the VPL and Reebok bras), our go-to patent expert Sarah Burstein told us not too long ago that the requirement it is not as straightforward as it seems. She explains:
When a patent is allowed, it doesn’t mean the [patent] examiner found that the design was novel—it only means they didn’t find proof that it was not novel. More specifically, if the examiner didn’t find an identical [bra] in the prior art (or, at least, in whatever prior art they looked at), then they can’t reject it under § 102 [the section of the Patent Act that sets out the conditions for patentability in terms of novelty]. And the Federal Circuit has made it nearly impossible to reject anything under § 103 [the section of the Patent Act that sets out the conditions for patentability in terms of novelty].
To translate that a bit for you: In order to determine if an invention is novel, the patent examiner will look to the prior art, which is a patent law-specific term referring generally to any disclosures or events that occur before a person conceives of an invention, or in some cases, before a person files a patent application. If the invention that is seeking to be patented does not match any invention that exists in the prior art, then it will be deemed to meet the “novelty” prong of the test. This makes it, as many patent experts have noted, relatively easy (potentially far too easy) for prospective designs to meet the novelty prong.
So, what does this mean for VPL? Chances are, Reebok’s bra is likely different enough from the Insertion Bra that the sportswear giant is in the clear here, especially if we are to consider the design in its entirety and not just the strikingly similar design elements on the front of the two bras. And it helps that neither brand seems to be taking issue with the other, suggesting that the two can co-exist in harmony and sell their respective bras to their respective audiences.
As for the line-for-line copies that popular Canada-based retailer, Artizia, is offering, that’s another story.