Is litigation over bras frivolous? No way!

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For those of you who missed it, Victoria’s Secret and its affiliate, La Senza, have just engaged in combat with Maidenform—okay, they’re actually litigating, but their cause is awfully important—over who has the right to produce—yes, you guessed it—a bra. Not just any bra, mind you.  We’re talking about the “Bombshell ® brassiere” and the “Hello Sugar ® brassiere.” (Yes, it’s difficult not to engage in sophomoric jokes about this.)

You see, Maidenform accused Victoria’s Secret and La Senza of infringing on its patent concerning a “bra cup for increasing visual appearance of breast size and brassiere incorporating the same.”  So, Victoria’s Secret and La Senza decided to launch a preemptive strike and file suit. By virtue of this lawsuit, the U.S. District Court for the Southern District of Ohio will learn how 21st century technology makes it possible that a bra can “increase the visual appearance of the size of a wearer’s breast, more particularly, to a bra cup that increases the visual appearance of a wearer’s breast by two (2) cup sizes.” Ahem.

Perhaps Lady Justice, whose likeness can be found at most courthouses, should be fitted with this state of the art technology. If she is tasked with upholding justice, shouldn’t high-tech engineering be used to uphold her endowment?

Certainly, this will be a high point for jurisprudence in Ohio and will likely eclipse the lawsuit brought in the same court in 2004 by J.M. Hollister against American Eagle over the number 22.  That’s right—a lawsuit over the number 22.  Hollister had alleged that only it could use 22 on its clothing. So why was 22 so important?  Well, because 22 “is derived from the year 1922, the fictitious year the [Hollister] stores were ‘established.’”  That makes sense, doesn’t it?

Okay, as a lawyer, maybe I shouldn’t be joking about these lawsuits. After all, intellectual property rights are at stake, and this isn’t my field of practice. But here’s what gets me. The U.S. Chamber of Commerce and other conservative groups will readily denigrate personal injury and medical malpractice actions as frivolous, regardless of the underlying facts, and demand tort reform, but legal combat between businesses concerning the illusion of bigger breasts or who gets to use what number doesn’t raise an eyebrow.

What am I missing?  The obvious, as my wife explained things to me. “If anything happens to those bras,” she explained, “a lot of women will be let down.” Oh.

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  1. Deb d'Aurora  March 10, 2014

    Nice piece, Glad you’ve decided to speak up for women for a change!


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