Oh for the Love of Pete!

by Erin on January 27, 2011

So do you remember The Uniform Project? Woman wears the same dress every day for a year, raises money for charity, great idea, yadda yadda.

Even cooler, she made a pattern for the dress, and is selling the pattern … except: by buying the pattern (for $25, including $2 extra to her charity) you agree to this wackaloon EULA:

I acknowledge that the designs and patterns (the "Dress Patterns") offered for sale on this website are protected by copyright, trademark and other intellectual property rights controlled by Uniform Project. I agree that I may use the Dress Patterns only for personal, non-commercial purposes. For the purpose of clarity, I shall not use any item of clothing created through use of the Dress Patterns (the "Dress") in any commercial advertising, film, television, print or online media, nor shall any Dress be sold to third parties without the prior written consent of Uniform Project. For the avoidance of doubt, no prior written consent shall be required to post photos or videos of any Dress on a non-commercial website.

There are so many things wrong with this. Where to start?

– First, this agreement would prohibit you from donating a dress to Goodwill or selling it at a yard sale.  And IANAL, but I think this is permitted under the right of first sale: in other words, once you buy something, especially a physical object, it is your right to sell it as you choose. 

– It's pretty standard for commercial sewing patterns (Vogue, etc.) to say you can't use the pattern to make garments commercially, but — you don't want to anyway. But saying you can't wear the dress on TV? Why not? Do they seriously think that if someone shows up wearing this dress in, say, a Mentos commercial it infringes their trademark? What if you are photographed for a "man on the street" segment? (And the founder of the project works in advertising, or did, which makes this all the more head-scratchy.) 

– Again, IANAL, but as far as I know, you cannot copyright a fashion design in the US (in fact, Diane Von Furstenberg has been trying to change that for years, in part to protect her iconic wrap dress) but only the printed pattern (or you can trademark a logo, which is part of the reason why huge logos are so prevalent these days). (And I'm not an expert in using the USPTO site, but I didn't even see a trademark registered for the Uniform Project, under that name.) 

– And what makes something a non-commercial website? I run ads, is this site commercial? (That's why there's no picture of the dress or pattern here, although I think their restriction makes no sense.) What about someone who makes butter-and-egg money from Amazon affiliate links? Who gets free products for review?

Does anyone (perhaps someone who is a lawyer) know why buying a dress pattern would be saddled with such a restrictive agreement? I can't imagine the possible "tort" that would necessitate this kind of heavy-handed protection. Does someone wearing this dress in an ad really injure the Uniform Project in a substantive way? 

Needless to say, they lost my business. 

{ 38 comments… read them below or add one }

Ros January 27, 2011 at 6:04 am

Crazy. I am not a lawyer either, but I’d be amazed if most of that would ever stand up in court.

This has become a huge issue in the world of knitting patterns lately, with designers claiming rights over the use of the finished objects made from their patterns. As far as I know this has never been tested in court but I’ve never seen any convincing arguments to suggest that designers have such rights. Their copyright extends to the pattern (i.e. the template and instructions and so on), not to the finished objects made from that pattern.

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PatternJunkie January 27, 2011 at 6:07 am

This is absolutely ridiculous! You wouldn’t be able to post photos of your work — or yourself in the dress on Facebook, couldn’t wear it in public for fear of being caught in a photo…blech.

But thanks for the link re: patternmaking — it’s a very interesting read!

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What-I-Found January 27, 2011 at 6:11 am

Not to mention the sales that might have resulted from a positive mention here. Sheesh.

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Lydia January 27, 2011 at 6:51 am

I emailed you my thoughts on it. Sounds to me like this was written by someone who wanted to protect her work and didn’t have a clue how to go about it.

I bought the pattern because I desperately want that dress–just not at the price they’re selling it, and not so horrifically short. I didn’t wear skirts that short when I *did* have the legs for it!

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LBC January 27, 2011 at 7:06 am

I’ve actually seen this before with another one of my hobbies, but it was a little different in that the “artist” of the items in general had to put a whole lot more work into it (as opposed to selling a pattern that the buyer then does the work to cut and assemble), so the artist really was the artist, both in the sense of having created the concept, and in the sense of having done all the work. But, even at that, a lot of us thought it was pretty heavy-handed.

Even if I liked the dresses (which I think are hideous and completely unsuited to the 98% of the adult female population who isn’t built like Twiggy, but it doesn’t really matter), I would be totally put off from buying anything of hers, or donating, because she’s being such a cranky-pants control freak.

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Julia January 27, 2011 at 7:43 am

I think this is such an interesting project; it’s a shame that the details have shaken out this way. Although I will venture to comment that a dress that supposedly can be worn backwards or forwards? Um, that is only going to work for a small percentage of women’s bodies.

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Sarah January 27, 2011 at 8:27 am

I’m definitely not a lawyer either, and nothing I say should be construed as legal advice, BUT:

I am a librarian, and I’m writing a paper on sewing patterns for an intellectual property class right now. Basically, in the sewing industry, all this kind of stuff is just copyright bullying.

Fashion designs can’t be copyrighted, and there have been several court cases I found where judges ruled that PATTERNS aren’t copyrightable either. Cases claiming that have been thrown out several times, but these things rarely go to court.

How binding a EULA like that is is another matter, but courts have also ruled that the First Sale Doctrine overrides ‘shrink wrap licenses’ when it comes to CDs. Recordings are copyrightable without doubt and these licenses haven’t held up, so it seems doubtful to me that any of this is legal.

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CarmencitaB January 27, 2011 at 8:37 am

Funny because I was ready to buy that pattern and then read the fine print and it stopped me cold.
The only patented dress I know of is The Infinite Dress, I just posted about it today talk about coincidence, and just in case you are all interested, there is a really cool Ted talk about fashion being an industry that is open source and therefore thriving here :
http://www.ted.com/talks/lang/eng/johanna_blakley_lessons_from_fashion_s_free_culture.html
Fashion houses have trademark protection, but no copyright protection or patent protection.
So it wouldn’t fly on a day in court and I can always draft one!

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purpleshoes January 27, 2011 at 8:49 am

What I hope is that this was written with good intentions towards keeping someone from using a nonprofit awareness-raising project for personal gain. What it sounds like is a clumsy attempt to protect a blogger’s brand. Eugh.

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Allison January 27, 2011 at 8:55 am

There seems to be a shift towards licensing rather than ownership these days and I think it’s greedy, short-sighted, ill-conceived, and stifling to creativity. Bleh!

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kathleen January 27, 2011 at 9:06 am

I won’t be buying that pattern. Also, IANAL either, but I know several lawyers, and when I read that restriction to one, he laughed and said it was totally unenfoirceable, and did she not want to sell any patterns? Because by selling the pattern, and getting money, means you are selling the idea, and the user is getting some rights to the idea, and those rights are just as important as the designer’s rights. whew! I won’t be buying that pattern…because of her “control issues”. Also lack of generosity.

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Nina January 27, 2011 at 9:32 am

IANAL, but, this guy http://www.tabberone.com/Trademarks/CopyrightLaw/Patterns.shtml has some interesting observations.

A snippet from the page:

We have two quotes here from the 2nd Circuit Court of Appeals (1991 and 1995) relating to clothing and the fact that clothing is not copyrightable. So if clothing is not copyrightable, how can a pattern designer make the claim that their copyright covers the end product, which in most cases is an article of clothing? The claim of making a derivative fails on the same grounds because a derivative must be copyrightable in its own right and clothing is not copyrightable.

In addition, read the 1995 letter from the Register of Copyrights explaining why clothing patterns are not copyrightable.

These patterns are intended to create templates for cutting layers of fabric. This makes the patterns “useful articles” which are not copyrightable under sections 101 (definition of “useful article”) and 102 (subject matter of copyright) of the Copyright Act.

/snip

So pattern pieces themselves are not copyrightable because they are a “useful article”. HOWEVER! Pattern illustrations and the printed instruction sheets *are* copyrightable.

Ignore the fine print. It’s just smoke and mirrors.

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becky January 27, 2011 at 9:43 am

There are plenty of alternatives to her pattern. Ebay and Etsy are full of basic princess seam dress patterns and the drafting to create an inverted pleat is very ea

McCalls 3610 from the 1970s for only $7 (donate the $13 you save to Charity!)

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Danika January 27, 2011 at 10:00 am

I found the original project sort of irritating in that it purports to be about sustainability and reducing footprint, but the blogger seems to have as many clothes as anybody. She just always wears that one dress mixed in with her wide assortment of tights, leggings, skirts, tops, scarves . . .

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Stephani January 27, 2011 at 10:10 am

Wow. I agree with what some other posters have commented, that it sounds like she just wants to prevent her charity work from being used for the profit of any non-charity organization. But it is far too heavy handed, and as we’ve seen, most likely not legally enforceable anyway. So she’s just driving away potential purchasers/contributors to the charity. What a shame.
There was never any chance of me buying that pattern, because it definitely wouldn’t flatter me–and reversible? Heh! Not unless I develop back-boobs of the same cup size as my front-boobs.

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Sheila January 27, 2011 at 11:07 am

You can take pictures of it. I find it annoying that when they are trying to raise money, the original dress is $$$ outside of most people’s budget and $25 for a pattern is outrageous. Some of us live in the real world with real budgets.

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bittersweet January 27, 2011 at 12:46 pm

Sorry, to post something off topic, but I’m curious about this comment:

Even if I liked the dresses (which I think are hideous and completely unsuited to the 98% of the adult female population who isn’t built like Twiggy, but it doesn’t really matter)

I was just curious why this person feels this way (I wear dresses almost everyday and most definitely don’t look a thing like Twiggy) and why she reads a blog called Dress a Day then.

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Laura January 27, 2011 at 1:47 pm

Bittersweet, I think s/he meant the dresses from the Uniform Project, not dresses in general. I’ve never ‘gotten’ the Uniform Project – it seemed like it got way bigger than the idea itself would justify. And the dresses they wear would look horrible on me. Gotta agree with Sheila that $25 for a pattern, particularly a simple one, is very high and hard to justify, whether part is for charity or not.

And yes, that EULA is nonsense legally and insulting to buyers. There was that thing with Amy Butler a few years ago when she had printed in the selvages that her fabrics couldn’t be used to make items which were then sold commercially. A) that restriction is probably illegal and definitely legally unenforceable and B) she garnered a huge amount of customer ill-will and really shot herself in the foot with the whole affair.

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Dianne January 27, 2011 at 2:07 pm

It occurs to me that someone got ahold of “Legalspeek for Dummies” and is a little obsessive about it.

Avoid like the plague – what a terrific way to sink your project poste haste. Nicely done.

Tell you what, I’ll work up a pattern and hand it out, you can use it commercially (I don’t mind…), you can wear it on TV (I don’t mind…), you can sell it to anyone (I don’t mind…), you can use it to dance the Hoochie Coochie (I don’t mind…)….

In fact, I’d be flattered for the word-of-mouth.

But then – I’m not a touchy control freak who ever bought any of the ‘For Dummies’ titles, so there goes my insanity clause….

Cheers,

dianne

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Meg January 27, 2011 at 3:06 pm

Her pattern isn’t even that original as I am pretty sure I own it already. I got it for $1 in a pack of patterns at a thrift store (15 were in the pack).

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Steph January 27, 2011 at 3:35 pm

You know what I think about these sorts of things? I bought the pattern. Good for me. Perhaps it’s fair enough to stipulate that the buyer can’t sell items made from the pattern under the name of the pattern, in order to preserve brand integrity, but otherwise I think it’s kind of nutty.

Does Jamie Oliver tell me what to do with the food made from his recipes? No. I bought his book. Good for me.

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belphebe January 27, 2011 at 7:35 pm

I remember reading about the uniform project a while ago and thought the idea was intriguing until I went to the site. As someone else mentioned, this person didn’t wear just the dress every day, but had a whole bunch of items to wear with it. Also, wearing it backwards seemed like a bit of a cheat. You may only be wearing the same dress, but it looks like two dresses when you wear it the other way.

It turns out that she isn’t even the first to do something like this. The Uniform Project is from 2009. I stumbled across a site for the “little brown dress”, which documents a woman’s year-long journey with her brown dress in 2005. (www.littlebrowndress.com)

I found the brown dress project to be much more interesting to read and I liked her dress design. She doesn’t say that she will wear the dress exclusively, but the goal was to wear the dress every day for a year, with or without other garments.

It was a normal dress that would probably look good on most people (and it has pockets!). If you really want your own version, she has written instructions on the site (and pictures of her pattern pieces), but of course, you would have to figure out how to make the pattern yourself.

I would consider buying or making my own “little brown dress”, but I would never make the Uniform Project dress. As others have mentioned, I don’t think that style would fit me.

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JenL January 27, 2011 at 11:07 pm

I think you could give it to a charity. It states that “I agree that I may use the Dress Patterns only for personal, non-commercial purposes.” If I give it away I’m not selling it. It is no longer my problem if they choose to sell it. Just splitting hairs though. It does seem weird. I liked the argument about chefs not dictating what we do with foods created with their recipes. Recipes are pretty widely accessible via the internet–either in print form or if you watch them make it in a video.

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Cecelia Petro January 28, 2011 at 5:39 am

Thanks for the intelligent discussion. I am especially intrigued by the open source nature of clothing and design and the relationship to it being a thriving industry.

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Ruth January 28, 2011 at 6:10 am

I stopped taking part in the crafting and embroidery “community” on the web precisely because everywhere I looked people were claiming rights over the most prosaic bits of handiwork. You know, they show you an apron or a doll or something, maybe provide a pdf or a tutorial, maybe not, and accompnay it with dire threats of legal action if you should so much as think, “Oh, that’s nice, I think I’ll make one of those.” I think a lot of people are just exercising their fantasy that their (rather modest) creative abilities, combined with the wonders of the web, are capable of generating a small fortune. It is just fantasy. But it makes blog visitors feel unwelcome (like when you feel store detectives following you round the store when you’re only filling time anyway).

I returned to my first love, garment sewing, and I have to say that sewists or sewers (as I they are now most unfortunately known) are a fun and generous bunch compared with embroiderers and crafsters. Maybe a lot of them actually know the law about copyright?

Mostly, these copyright-personality-disorder types are just laughable. I mean, have you seen that dress? Actually I did, I laughed!

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Habitual January 28, 2011 at 7:28 am

There’s pretty clearly a feminist issue here, where intellectual labour traditionally performed mostly by men (writing, film-making, etc) has had a history of protection by copyright, while intellectual labour traditionally performed mostly by women (clothing and food production) has no legal precedent of protection. Of course since copyright of any kind now seems to be enforced mainly to the benefit of corporate entities, maybe it’s a moot point…

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lsaspacey January 28, 2011 at 7:57 am

I do want to make a point that all the accessories and other things that she wore with the dress were hers alone, there was an actual request for donations of accessories to keep the dress from looking the same everyday. Also, there was more than one of the dress, because of daily laundry issues (I believe there were five?)

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Christine January 28, 2011 at 8:34 am

In reality, unless you were engaging on a commercial enterprise that rested on this pattern (such as making and selling these dresses in bulk), a normal person’s use of this pattern would fall under Fair Use. Key concepts that favor Fair Use are not infringing on the market of the copyright holder and making limited copies.

Of course, the argument that it is the pattern, not the clothing, that is copyrightable would probably stand up as others have said. But Fair Use would overrule even that, as long as you were not taking money out of their pockets.

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Sarah January 28, 2011 at 8:58 am

That’s a really interesting point, Habitual. I hadn’t thought of it, in studying copyright, and I consider myself a pretty involved feminist.

There are exceptions to this duality, though. Things like textile prints and decorative arts are covered by copyright, while industrial design isn’t.

I think the rationale behind the ‘useful articles’ distinction is that copyright was originally intended to stimulate creativity and encourage people to put their work out there by assuring them that they could make money and have a little bit of control. Useful articles are their own reward, and a combination of an idea and a method, neither of which really should be controlled, if your aim is to stimulate creation.

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Habitual January 28, 2011 at 1:25 pm

Thanks for the compliment, Sarah, but I should say it’s not an opinion informed by a rigourous knowledge of copyright, it’s just a thought that occurred to me as I was reading the thread here. I expect there’s a lot of idiosyncrasies with any kind of legal tradition with such a long history.

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Nommh January 29, 2011 at 3:39 pm

@Ruth
“copyright-personality-disorder types” is priceless and I have come across them on Ravelry.
There is an instant kind of disgust against such extreme protectiveness.
And then habitual made me stop and think, but I did not have to think long before remembering this article
http://www.spiegel.de/international/zeitgeist/0,1518,710976,00.html
which claims that lack of copyright in the 19th century helped Germany’s industry to overtake that of Great Britain, because men could teach themselves engineering from cheap unauthorised copies.

So it seems that copyright reduces creative output to a measly trickle where we are looking for an abundant delta

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Phyllis February 2, 2011 at 4:15 am

Well one reason why she’s being so restrictive is that in order to protect her IP rights shes has to assert them. The great irony of US IP law is that the actual job protecting IP falls solely on the owner of the IP. The federal govt does not enforce IP rights on behalf of IP owners, all they do is provide a means for the IP owner, through copyright, registered trademarks and patent law,to put a stake in the ground and say they were the first person to invent that IP. All she’s doing is affirming her sole and exclusive right to determine how she wants her IP used, and in order to protect it against infringement she has to create a precedent showing that she protected it. I do agree though that she stated it in a pretty adversarial manner.

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Sarah February 2, 2011 at 9:53 am

There’s the question, though, of whether you can just slap legalese on things and expect it to be legally binding. A dress pattern doesn’t qualify for copyright, patent, or trademark. Additionally, the first sale doctrine gives people the right to resell their physical item, and US IP law doesn’t acknowledge moral rights of creators, anyway.

Nothing she’s claiming actually has any basis in law, as far as I can tell, and insisting on all of it just looks like copyright bullying of an under-informed community.

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Lillibet February 3, 2011 at 9:46 am

Hoo boy, such are the restrictive covenants my own clients call me about, and I always get a good laugh. No, I am not practicing law here, but—the entirety of the covenant is so absurd as to be one of those hot topic subjects that used to litter the law student blogs in days of yore. Or at least, my own days of yore. You can check. It was right about the time dinosaurs left the Great Plains to the corn farmers.

As to the nature of the pattern, it is certainly a derivative work. Pattern maker, beware of pre-loading the stone throwing machine, i.e., the restrictive covenant that gives any Victorian corset a run for its money, when your glass house is made from the pains, err panes, of others.

As for the rights, there are copyrights, which go to the designs, and there are trademarks which go to the logos. Titles aren’t copyrightable, but titles are trademark-able, so to speak. That is, even Diane F can trademark her dress name, if it is found, in the trademark examining procedure, to be unique enough to function as a name that will connect the product in the mind of the consumer, with the product maker.

Now, as to the covenant. Itself. If the pattern maker doesn’t want the dress to enter the public mind, such as via television or internet movies, and wants only the seamstress in the back room to know about it, let her have at it. This covenant is the perfect vehicle to keep the dress out of the public eye.

Apparently, that what the covenant drafter wants. Also, no court would likely enforce it, because, for the covenant writer, the reality hasn’t yet struck. That would be the reality of how the marketplace works, how the law works, or the intense pain of enforcing such a covenant. There isn’t enough money, for the costs of suit are daunting. All it would take is 100 dress wearing appearances on the TeeVee machines in four different states to bankrupt the litigation fund — due to costs of drafting the complaints, filing fees, and service of process costs to get the complaint to the alleged infringers. Those infringers are, in hypothetical sense only, the dress wearing, appearing on television, wastrels clad in their Uniforms.

Personally, for a uniform, I prefer the simple navy suit, well tailored, with a blouse that is flattering but not revealing, dark stockings, sensible but feminine lower heeled pumps, a briefcase to die for, and a coat over the that makes a lovely swooshing noise when I move.

An option to protect the dress is to get it design patented as a “container” of sorts. It worked for the Playboy Bunny costume, and also worked for the Golden Arches design of those famous drive in buildings that sprouted like mushrooms after the rain in the latter half of the 20th Century. It’s a restrictive process, and requires a pretty inventive design patent application, but it has been done. I’m not saying it would work here, it’s just a possibility.

Today, most copyrights applied to patterns are on the envelopes and tissues. Thus, the copyrights only protect the envelopes and tissues. And, most are a claim to common law copyright, which means precious few would be enforces. However, the designs that have designer names attached to them would also have a trademark and tradename infringement count if the names of the designers were infringed.

As to the covenant, thanks for the laugh. I’ve been feeling a tad puckish, and the guffaw has raised my own spirits considerably.

After all, God forbid my great aunt take a photo of me in one of those dresses, mail it to my other great aunt, or worse yet, post it on Auntie Other’s Facebook page, and it end up on a TeeVee show like Celebrity Apprentice. Or the news. Or even in the Greater West WasisPlace News for the Above-Ground World–circulation more than 15 per year.

In the meantime, I’m going back to making my own derivative dress, based on a design from a Vogue pattern, a McCall’s pattern, and a slew of advice from Claire Shaeffer’s Couture Sewing books.

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Dr. Julie-Ann February 8, 2011 at 6:06 pm

Did anyone else encounter this? In order to buy the pattern, I HAD to make a donation. I couldn’t continue with the purchase until a donation was made. Doesn’t that negate it as a “donation?”

I’m willing to give her the benefit of the doubt regarding her language protecting her work but being forced to make a donation stopped me cold in my tracks. I have my own causes that I support.

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janette February 27, 2011 at 11:45 am

This ‘uniform dress’ was already done, if you ask me. I lived in France back in the fifties, and one of the things I most admired about the french women was their fashion style. While the ladies I am referring to were amazing, they were amazing while growing their own food gardens, cooking and raising children. They did not have money to waste. I doubt if they had more than two dresses, made of wool, and beautifully tailored by themselves, worn most days with an apron. I have spent my life working toward that idea. I have about 5 outfits for winter(9 months) and 4 or 5 for summer. About 5 sweaters. When something wears out I will sew another.

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martine February 27, 2011 at 5:42 pm

You can NOT trademark a dress pattern! What kind of BS is that? That agreement isn’t binding, and very misleading. Imagine someone trademarking a miniskirt, or a pair of pants? What then? No one could make a pair of jeans without them being paid a kick back? Even a wrap dress has probably been done before Diane F made them famous. Thats just some seriously evil non sense!!!!!! Im very disappointed.

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martine February 27, 2011 at 5:48 pm

Or what I meant to say was you can not trademark the item made from any dress pattern. The pattern itself, with your specific instructions can indeed be copy written just like any written material. But not the garment.

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