The recently-filed claim related to Paris Hilton’s haircut is dazzling in many ways. First, because it concerns Paris Hilton’s haircut. Second, because the plaintiff alleges that another company has violated the plaintiff’s patent on hairclips and is engaged in false patent marking.

On September 27, 2010, Celebrity Signature International, Inc., has filed a claim in the Western District Court of Missouri in which it denounces a patent violation by Hairtech International, Inc. The plaintiff is the lucky inventor, or so it appears, of hairclips and extensions that provide to girls (and boys) the possibility to look like their favorite celebrity. On its website, the firm thus offers a rich assortment of hairclips and extensions in, for example, the latest Jessica Simpson trend.

Celebrity Signature has filed, in 2007, a patent application for these “alternative hair” products, and the patent was granted. After all, hairclips and extensions are highly new and non-obvious, and they do have a great industrial applicability. Now the company sues Hairtech on the grounds Hairtech has no right to sell hairclips and caps in Paris Hilton’s style. Hairtech commercializes extension hair under the name of “Clipin-Go by Paris Hilton” and “Dream Catchers”. Celebrity Signature does not specifically target Paris Hilton’s hair admirers market. Further, Hairtech would have signed an agreement with Paris Hilton in January 2007 according to which Paris Hilton would be the spokesmodel/icon for the “Dream Catchers” range of products. And the patent application for Celebrity’s products was filed in February 2007. So whose products were new and non-obvious? And does a patent on hairclips prevent any company from entering the market in offering a similar but still alternative product?

Celebrity also argues Hairtech is falsely advertising a patent application on his products. Aside from the actual veracity of this allegation, one might wonder if any hairclip patent application could be new and non-obvious enough to have sufficient support. Is the scope of novelty really substantial where hairclips and extensions are concerned? One could think that Paris Hilton-like hairclips are completely original and absolutely dismiss Celebrity’s contention. Could one really compare Jessica Simpson’s haircut to Paris Hilton’s?  This case reveals how patent-related claims are strongly linked to economic interests and how one sometimes alleges intellectual property rights violations as a way to limit competition.

Contrary to one might think, intellectual property rights in haircuts are not a new concept. For example, in French copyrights law, the Court of Appeal of Aix-en-Provence has, in 1987, recognized copyrights on a haircut when “a close examination of a haircut reveals an aesthetic purpose […] and when the creation does not result from a current haircut technique.” On this case, the court seemed to have applied a test more closely related to patent law than to copyrights. Indeed, the paternity is protected when it displays novelty and is non-obvious. As to the aesthetic purpose, it raises another question: to what extent should courts be allowed to use an aesthetic test (thus a subjective test) to determine whether the work is original?

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