My bet here is that AF's flannel and woven designs would not be afforded copyright protection. The question is whether the designs are artistic or functional (or alternatively, whether they lack originality)--before you quickly respond artistic, courts typically err on the side of functional. If Campus Crew copied one of the graphic tee designs, that would clearly be copyright infringement. The rationale behind not affording protection to basic designs such as these is that the protection does a disservice to consumers, because it would allow a copyright holder to have a monopoly on a common design. Eventually, in this circumstance, all you'd have is really funky flannel designs because all of the mainstream ones would be locked up. Slight deviations in design wouldn't suffice, because in an artistic work, that is not enough for a new copyright. This all assumes AF registers each of its clothing designs in the first place (while you have a copyright without registering, you can't win a suit for damages without registering).
I'm sure you can infer the rest from there. Different courts use different tests to determine whether it's aesthetic or functional; if you're interested in finding out more, google: "aesthetic functional copyright clothing". This doesn't mean AF won't threaten suit--since it's somewhat of a grey area, the threat alone might scare Campus Crew into pulling the AF copycat designs.
As for the trade dress suit against AE, I haven't heard of it, but I can't believe they would have filed that suit (I do believe it, it's just dumb). Trade dress suits are really difficult to win, and typically end up with similar results (I've read some scathing opinions so the embarassment part is no surprise).
Last edited by JohnGalt; 10-26-2008 at 10:54 AM.
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