Attorneys who represent clients in the fashion industry should note a potentially important new defense to Copyright infringement: "copyright misuse." A case that started in the California federal district court, wound its way up through appeal and certiorari to the United States Supreme Court, only to be remanded to the District Court, Omega S.A. v. Costco Wholesale Corporation (E.D.Ca., Nov. 9, 2011), may usher a powerful new defense in cases involving gray market importation.

It has long been the case under the Copyright Act that most apparel and fashion accessories are "useful articles" and are ineligible for copyright protection. Swiss watchmaker Omega wished to control the marketing of its watches in the United States, but found itself without the proper legal tools to do so. Omega could not control the unauthorized importation of authentic watches (i.e. "gray market" imports) that ended up in low-market outlets like discount store Costco...