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Retailers Urge ITC to Ditch Denim Patent Infringement Case

Apparel and retail associations have banded together to request that the U.S. International Trade Commission (ITC) forgo an investigation on a recently filed denim patent infringement case as they believe it would adversely affect competition in the industry.

Last month, Ohio-based laser technology company RevoLaze filed a patent infringement complaint with the ITC against 17 leading denim brands, which it claims used its laser abrasion technology, and the firm is seeking a ban on imports incorporating the technique.

The American Apparel & Footwear Association (AAFA), in partnership with the National Retail Federation (NRF), the Retail Industry Leaders Association (RILA) and the United States Fashion Industry Association (USFIA), drafted a letter to the ITC in response to its request for comments, and outlined reasons why the infringement complaint should not warrant review.

As noted in the letter, the point of RevoLaze’s infringement complaint is that all laser abrasion technology violates one or more of its patents, as the company claims to have 29 worldwide patents on laser inscribing methods. The laser abrasion technology replaces the sandblast method used to create the worn look of distressed denim, and RevoLaze says companies aren’t using the patented technology legally.

In the complaint, RevoLaze targets Jeanologia/GFT and Easy Laser’s abrasion technology, but instead of citing them for infringement, RevoLaze chose to go after brands and retailers that import distressed and worn denim. Levi Strauss & Co., Lucky Brand Dungarees, Inc., AG Jeans, Gap, H&M, Abercrombie & Fitch, American Eagle Outfitters and DL1961 Premium Denim Inc were among the brands named as having violated the patent.

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If the ITC were to find the brands to in fact be in violation, the decision could have a negative impact on public health in the apparel industry.

“Our members are working to eliminate the practice of using sandblasting for post-production finishes from our supply chains due to the concerns raised by apparel production workers of significant health risks if the sandblasting is not performed with adequate protective gear using safe work practices in a proper environment. A broad import restriction may significantly restrict the use of alternative technology, which would chill efforts to remove harmful sandblasting techniques and encourage a return to the use of sandblasting, creating a serious risk to the health of workers,” the letter noted.

Because RevoLaze is asking for a ban on imports incorporating the abrasion technique, an approved general exclusion order could mean a restriction on all denim with a distressed finish. And because there is not test for U.S. Customs and Border Protection to use to determine how a garment came to appear worn, retail associations fear the ban would lead to “overbroad enforcement” and restrict the look altogether.

“The impact of the requested remedy would deprive U.S. consumers of the ability to choose multiple garment finishes and appearances in the apparel they buy, have a substantial negative effect in the U.S. market for denim garments, and create economic hardship for U.S. companies and their employees,” the letter noted.

The associations have asked that the ITC neglect to initiate the investigation, but requested that should they proceed, that they delegate the authority to make factual findings regarding the public interest to the Administrative Law Judge.