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J. Crew and False Marking

January 16, 2012

Seen to the right is a photo of a tag on my J. Crew coat. After taking it off yesterday I happened to notice the “Reg. U.S. Pat. Off. No. 77388. Curious that J. Crew would have such an old patent on a coat, I pulled up Google Patents to see what it looked like. Boy was I disappointed when 77,388 pulled up this, titled “Improvement in the Manufacture of Glue.” Glue? What?

Maybe they meant that it was a design patent? Nope. D77,388 is a design patent for wallpaper. Ugly wallpaper at that. How would you like this plastered all over your wall?

So, unless I am missing something (am I missing something?) J. Crew just came out of left field with this one. C’mon J. Crew. You can do better than that.

It is lucky for J. Crew that 35 U.S.C. 292, the false marking prohibition has been wiped out in the new iteration of US Patent law. Otherwise, I would be all over this one. It should be an easy win right? False marking is obvious, and intent to deceive should be a no brainer, this marking was clearly made just to make the product look “vintage”, or something. Further, I would argue that the 5 minutes I spent online finding out that this marking was a sham is worth at least $500 per false mark! J. Crew must have sold a couple thousand of these. I could settle for a million dollar payout, I guess…

Ok, so maybe a million is a little much. In any event it doesn’t matter because false marking isn’t a cause of action any more. However, this demonstrates that at some point false marking could get ridiculous. If nonsense markings start to be put all over unpatented articles, how much weight can be given to a legitimate patent marking in terms of intentional infringement? Technically it would not matter, but from an equitable perspective, I can see this argument persuading a judge to limit intentional infringement damages.

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One Comment leave one →
  1. January 16, 2012 7:46 pm

    At first I thought that might be an old trademark registration number — which might still be valid. But trademark # 77,388 is for harrows and plows. (http://tdr.uspto.gov/search.action?sn=60077388) Also, if it were a trademark, then labeling the number as from the “Pat. Off.” instead of “Trademark Off.” seems deceptive.

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