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Fashionably litigious

Originally posted 2010-05-26 12:48:33. Republished by Blog Post Promoter

Miss Trials is was a new blog, or sub-blog or something (I can’t make heads or tails of the navigation) on a site called Halogen Life.  [UPDATE:  This is a semblance what is looked like at first; this is what that URL looks like now — the blog is long gone. — RDC (July 2016)] It was written by Kelly Taylor — “a reformed politico, fashion writer and aspiring lead counsel for a major house of style.”

That’s her aspiration, yet she’s blogging?  Good luck with that!  Well, the blog is gone, actually.  But anyway, Kelly says said (the link is dead) that litigation is threatening to really rock the fashion business:

Not everyone in fashion supports a legal overhaul — designer Rick Owens has said he takes copycatting as a compliment. The industry, in part, thrives on knocking off garments. Unique, commercially successful designs do not come cheap. Top fashion designers can pull in millions a year for their work. One way lower market retailers keep costs down is by hiring cheaper design talent to simply translate the latest runway looks into marketable ready-to-wear pieces. Meryl Streep as Vogue editrix Anna Wintour — I mean — fictional Runway magazine editor Miranda Priestly in The Devil Wears Prada broke it down best when she tracked the origin of her assistant’s frumpy sweater from Oscar de la Renta gowns to a Casual Corner clearance bin. Frequently, the inspiration is vague, like mimicking a trendy silhouette or color. The problems arise when the line between inspiration and duplication blur.

Artistic integrity isn’t the only factor in play — exclusivity is a crucial part of the luxury industry. Sartorial snobbery is rampant in many knock-off allegations. Some designers have gone so far as to say that they don’t want plebeians affording their highly-publicized pieces — they’re to be donned by the elite of the world, not, as Versace’s CEO put it, “young girls who can put the designer handbag of their dreams on their arm with less than 300 Euros.”

Is copying a piece down to the smallest detail morally wrong? Absolutely. Should those companies be sued? Probably. But the ramifications of opening the door to a litany of design infringement suits could put a serious damper on mass-market clothing chains. Taking high fashion trends and making them affordable and accessible is nothing new in the apparel industry. Nothing can prevent designers from taking to court to defend their work, but the industry as a whole might want to be wary about eating its young.

Arguing for long-term perspective as a damper on litigation? Good luck with that, too!  Hat tip to @walterolson.

Giving up the Web

Originally posted 2010-11-05 17:11:33. Republished by Blog Post Promoter

ClickZ News says lawyers are “Giving Up on Web Trademark Infringement”:

“Trademark dilution is death by a thousand cuts,” said Joe Dreitler, partner at Frost Brown Todd. “And if there are a thousand people doing parodies of Louis Vuitton, at what point [does it occur]?”

It’s almost as if the claim of trademark dilution, regarding which we have long been very dubious, brings its own punishment: It is now so relatively easy for a truly famous mark (such as Vuitton, which we have represented) to make a meritorious dilution claim and yet it is even easier to dilute a trademark on the Internet. And the bigger the trademark the more dilutable… the more it cries out for dilution… the more lawyers and trademark owners trip over themselves trying to figure out what to do about it. As this article demonstrates, they’re increasingly frustrated over their inability to do anything as the truly anarchistic nature of the Internet defies enforcement regardless of budgets or ambitions.

Probably the smart thing would be to forget about dilution, which the world lived without since Creation, and focus on tight brand building and enforcement against real infringements. But of course that is a course the trademark owners are constitutionally incapable of considering. Are they on the verge of making utter fools of themselves in the RIAA “constant nuclear option” enforcement — I mean, “enforcement” — mode? Probably. And law firms will profit all the way, which is the up side. (You think I meant that as a bad thing?!)

The trendiest of trends

Originally posted 2011-05-05 17:33:57. Republished by Blog Post Promoter

View from Mt. Holyoke - Thomas Cole“Green trademarks” that is. Green-themed, green-related, green to go, green for action! Well, trends aren’t just for marketers — you can find them in the media too. First, Susan Scafidi — trend-tracker extraordinaire, and, as you will see, a trend-maker too. This was on her awesomely chic blog but refers to an interview she did that was published in a Milwaukee newspaper on April 21st:

Eco-friendly fashion has escaped the confines of shapeless, formless, colorless sack dresses and ugly earth sandals to become a major fashion trend, with cutting-edge retailers like Barney’s New York shouting, “Don’t Panic! It’s Organic!” and celebrities adding their names to labels that promise sustainable, recycled, natural, biodegradable, cruelty-free, fair trade fashion fixes. With the text on some hang tags longer than an editorial in an alternative weekly and the British Advertising Standards Authority cracking down on unsustainable claims regarding “sustainable” cotton, Milwaukee Journal Sentinel reporter Lori Price asked your favorite law prof whether U.S. law offers any specific regulations regarding green clothing claims.

That should just about do it right there! But nope. Two days later, here’s the big trademark story on Ad Age:

Getting ready well in advance for today’s Earth Day events, marketers bombarded the Patent and Trademark Office last year for green-themed marks, leading to a 10% spike in trademark filings over 2006, according to a report released by the law firm Dechert.

According to the annual report “Trends in Trademarks,” filings for new trademarks last year topped 300,000, setting a record buoyed by interest in environmentalism. The previous record was 289,000 filings, set in 2000 during the internet boom.

Now that’s a trend!  Articles about eco-trademarks.

Now… “an interest in environmentalism,” eh? Let me suggest an inconvenient truth: Trademarks are about gelt. That’s what the article quoting Susan is about — the fact that there is (gasp!) no regulation over claims of “greenness” made on the stuff people sell you. As Susan says:

“The law hasn’t caught up with eco or organic, so frankly, it’s still easy to be green,” said Susan Scafidi, a visiting professor at Fordham Law School, who teaches fashion law. “So long as you are not defrauding the consumer, you can say anything, and so long as no one complains, you can do anything.”

Actually, it sounds like the law has caught up pretty well, no? At least until some legislator or interest group finds a way to catch up with it and… “buoy” some governmental “interest.”

Best of 2012: Fashionably great

Originally posted 2012-12-27 15:00:26. Republished by Blog Post Promoter

Originally posted October 25, 2012.

I had a fabulous time, if you will, as a panelist and participant in last night’s Fashion Lawyer Marketing CLE at Fordham Law School’s Fashion Law Institute.  I certainly learned far more than I taught, but of course, that makes sense, considering that I was only one-third of the panel.  Attendance was so good that people even sat in the front row!  I didn’t even see people looking at their smartphones.  (Someone said that’s because there’s no signal in the room, but that’s just crazy talk.)

Prof. Jeff Trexler, Bernice Leber, your blogger, Ted Max

Some highlights:

The fascinating and insightful Professor Jeff Trexler moderated, and first called on Bernice Leber, who besides having done everything a lawyer can do right in a career has also been the president of the New York State Bar Association.  She walked briefly through the history of lawyer advertising regulation and laid out the standards that apply today, mostly focusing on the attorney advertising rules in New York (many of which are her handiwork!) but without failing to address the complex nature of multi-jurisdictional and online practice in our era.  Bernice also discussed specific cases that have come before ethics panels and acknowledged that applying the standards in a social-networking, multimedia, branding-branding-branding world can be tricky.

I spoke next.  Obviously I spoke about myself.   In other words, I acknowledged the fact that I was invited to participate in the panel in part because I am considered a “success” a “branding” my practice among fashion lawyers — having come to terms with the fact that I probably really am a “fashion lawyer,” just kind of a lumpy one — and that it probably does “work” for me.  But I made a point of discussing how conflicted myself is about all this myself-talking-about.  Believe me, I am.  It’s almost embarrassing, really.  Indeed, I said, (a) I’m not sure what it really means to say that all this @roncoleman “branding” “works,” in terms of “fashion” clients; (b) what I do on this blog and in social networking is, to put it mildly, not for everyone; (c) what I do here is certainly not for everyone who wants to represent major fashion houses or the other big-money parts of the fashion “industry,” but that (d) people who represent smaller clients in design, retail and other parts of that business are also fashion lawyers, and … that’s okay; (e) unfortunately, while there are opportunities in marketing to and serving such clientele, the first part is easier than the second if you don’t have bona fide experience — ideally representing Big Fashion for a meaningful period of time, as I have been privileged to do — and that (f) yeah, I know, that experience is not so easy to get these days.  By the end of my presentation I managed to ensure that not one participant would get any ideas about sending me a resume.

Not so the next speaker, the highly tall and distinguished and stentorian and charming Ted Max, who did not hesitate to reinforce my point that we way we do things here at LIKELIHOOD OF CONFUSION® is not for everyone.  Ted recommended the approach of being really successful instead, and discussed fashion lawyer “branding” in the broader sense of career development — Read More…

Best of 2006: Side by side comparison doesn’t decide likelihood of confusion

Originally posted 2015-01-19 14:43:43. Republished by Blog Post Promoter

Originally posted on July 11, 2006.

Dooney pattern - Thumb

Dooney’s pattern

This is an important decision: The Second Circuit Court of Appeals has partially reversed the earlier ruling of the U.S. District Court for the Southern District of New York (full decision here) in Louis Vuitton Malletier v. Dooney & Bourke, Inc.

Here’s the “money quote” as a once-great blogger taught me to say (citations and internal quotes omitted; link added) :

We turn next to the question of likelihood of confusion. . . . The similarity of the marks is a key factor in determining likelihood of confusion. To apply this factor, courts must analyze the mark’s overall impression on a consumer, considering the context in which the marks are displayed and the totality of factors that could cause confusion among prospective purchasers.’ The district court here noted that there were “obvious

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

similarities” between the Louis Vuitton and Dooney & Bourke handbags. However, it determined that despite the similarities, the two marks were not confusingly similar. It appears the trial court made the same mistake that we criticized in [the] Burlington Coat Factory [decision]: inappropriately focusing on the similarity of the marks in a side-by-side comparison instead of when viewed sequentially in the context of the marketplace.

The district court reasoned:

Read More…

The sincerest form of flattery

Originally posted 2014-03-14 10:40:57. Republished by Blog Post Promoter

Susan Scafidi seems genuinely shocked — no, I mean, genuinely!  — over this comment by Ralph Lauren:

Nit fun unzer

When the New York Times‘ Eric Wilson listened to Oprah Winfrey and Ralph Lauren chat for charity, one exchange stood out:

“How do you keep reinventing?”

“You copy,” he said. “Forty-five years of copying, that’s why I’m here.”

Of course, everyone knows that the signature looks of the Ralph Lauren family of brands are inspired by classic Americana — with an occasional detour around the globe — but coming from the guy who was on the losing end of the best-known design piracy case of the late 20th century, the admission strikes a chord.

Honestly, honesty?  Now, when the U.S. may be on the brink of finally passing a law that, while it wouldn’t come anywhere near the level of the French protection that wrangled Ralph, would have a similar effect in some cases?

Oh, that law!

Well, a litigation dust-up here and there notwithstanding, Ralph can afford to be honest, honestly.  I think, indeed, Mr. Lifshitz is referring not to copying other proprietary designs, but to that talent that turned him into a gazillionaire:  Mastering the art of assimilating and replicating the look and feel not, with all due respect, of “classic Americana” but a very focused upper-crust Northeastern WASP sub culture and making it his own.

I when I was in college, I observed plenty of Jewish kids from backgrounds like mine, but a generation or two deeper entrenched in assimilation, do this on a personal level.  Some pulled the copying it off, some didn’t.  (I mainly went in the other direction.)  Ralph went beyond accessorizing social climbing mobility and ethnic metamorphosis to selling them.  And he did  it brilliantly, tastefully and very, very profitably.

He’s a real gem.  Why should he lie about “stealing”?

The better question is a question on the one Susan asks at the end of her article:  “Now, when the U.S. may be on the brink of finally passing a law that, while it wouldn’t come anywhere near the level of the French protection that wrangled Ralph, would have a similar effect in some cases?

Of course it would.  Absolutely.  But the real question is not what would effect would the substantive provisions of the IDPPPA have had, in the abstract.  It’s what effect would the cost of the IDPPPA have had on the young House of Lauren. Read More…

Couture in Court

Originally posted 2012-02-29 23:27:24. Republished by Blog Post Promoter

Fabulous filings for fashionistas — and those who just want to look like them!

Luxury goods rental

Originally posted 2013-08-15 15:06:12. Republished by Blog Post Promoter

“Bag Borrow or Steal™ – Borrow or Rent the Latest Authentic Designer Handbags Purses Jewelry and Accessories.”

You know they — the Big IP guys — are sitting in conference rooms trying to figure out how to stop this.

Soon enough when you buy a Gucci bag, it will come with a non-transferable “licensing” agreement!

My actual prediction:  They will make IP claims preventing the display of their merchandise in connection with promotion of this service, claiming, preposterously, a LIKELIHOOD OF CONFUSION as to affiliation, sponsorship, ownership… something.

Fashion Law at the Federal Bar Association

Via fashionista-lawyer-to-the-fashionista-stars Olivera Medenica, it’s time to roll up for the Federal Bar Association‘s 2016 Fashion Law Conference at the Parson’s School of Design!

Look, here’s the text I copied and pasted from the FBA website, minus the egregiously unfashionable FBA html:

Fashion Law Conference 2016 FBA

Parsons School of Design: School of Fashion
Starr Foundation Hall, UL102
University Center 
New York, NY

The program is organized by the The Federal Bar Association in collaboration with CAREER SERVICES at The New School.

Fashion is a $300 billion industry in the United States—even more on a global scale. Join the Federal Bar Association for a high-energy conference focused on the unique legal issues affecting this economic giant. Legal professionals and industry representatives will explore practice areas including labeling regulation, ethical sourcing of labor, anti-counterfeiting, antitrust issues, e-commerce, and mobile apps.

Check out our guest post on The Fashion Law to examine shining examples of ethical bling and industry-related regulations in place to ensure the integrity of diamond and gold supply chains.

Previous related posts can also be found here. CLE credit is available, and attendees will benefit from networking opportunities throughout the day.

Interested in becoming a conference sponsor? Fill out our sponsor request form here and email to Heather Gaskins at [email protected].

Now, fabulous, no? Go!  Registration, program and other information about the event are available at the FBA website.Fashion Law Conference 2016 via Medenica Law

Famous names on famous dames

Originally posted 2013-04-29 12:04:56. Republished by Blog Post Promoter

Oscars after-party thoughts: Did you ever wonder about just how far someone can go “knocking off” a famous designer gown?

Counterfeit Chic twirls around some elegant ideas.