Tag Archives: LVMH

Louis Louis

Originally posted 2012-03-13 10:54:05. Republished by Blog Post Promoter

Steve Baird makes some great points about the Louis Vuittion / student activities flier kerfuffle:

There has been quite a flap surrounding the poster and invitation used by the University of Pennsylvania Law School to promote Penn Intellectual Property Group’s Fashion Law Symposium, scheduled for a week from tomorrow. The symposium . . . boast[s] an all-star cast of general counsel from the fashion industry, including those from Ralph Lauren, Forever 21, and Coach – to discuss in the first panel: ”Trademark and the Fast Fashion Phenomenon.” The second panel is set to discuss “Copyright for Fashion Design: Evaluating the IDPPPA.” Last, copyright scholar David Nimmer is addressing “Copyright and the Fall Line” in his keynote address, and a number of big name law firms are symposium sponsors or donors . . .

Louis Vuitton – owner of the likely famous trade dress and individual marks depicted on the designer bag shown above – objected to the use of the poster shown below in this cease and desist letter, and LV now has been branded a serial “trademark bully” for it (and past objections against other alleged infringements). The Penn Law School Associate Dean for Communications apparently agreed to cease use, but then the accommodation was formally withdrawn by the University’s Associate General Counsel, in this response letter, defending the poster as a clever parody. As far as I can tell, the coverage of this flap is highly critical of Louis Vuitton for sending the demand letter in the first place, and entirely in favor of the University’s final decision to not cease use; for some examples of the coverage, see TechdirtAbove the LawLaw of FashionEric Goldman’s Technology & Marketing Law BlogThe Volokh Conspiracy,Johanna Blakely, and Alison Frankel’s ON THE CASE.

While I tend to agree the tone of the LV letter was excessive, and a few carefully-placed phone calls instead of a written demand, with greatly toned down the rhetoric, likely would have been more effective, what has left me a bit surprised by the coverage of this dispute is the absence of any scrutiny of the University’s response or position.

Now, I must say:  To me, the tone and the tack are the entire tale, and the level of coverage on that ground is appropriate.  But not the content; not all of it, because, as Steve explains quite aptly, a lot of of what everyone is saying is wrong:

[I]t seems no one is asking any questions probing the University’s claimed parody, and my concern about the popular ”trademark bully” label and a social media shame-wagon approach to this issue is it sends the wrong message in that it greatly oversimplifies a very complex body of trademark parody case law — decisions that most counsel as quite unpredictable if they ever go the distance.

Like it or not, unlike the defense of federal dilution claims where certain conduct is excepted from liability, neither noncommercial use nor parody is excepted from or an affirmative defense to trademark infringement. Parody is really just another way of saying, there is no likelihood of confusion, which no one will know for sure, without credible survey evidence of the relevant public. . . .

Is it not at least plausible that the modified LV artwork was designed to simply attract attention and fill seats in the auditorium, and not to make fun of LV, and that LV’s design was so meticulously reproduced that some who see it won’t even notice the subtle changes? After all, trademark parody case law certainly supports the proposition that the more outlandish, outrageous, shocking and/or offensive the parody, the less likely confusion will result. We’ll probably never know, but it wouldn’t surprise me at all – if survey evidence were pursued on these facts – to find support for an actionable level of likelihood of confusion as to LV’s sponsorship, affiliation, connection, or approval of the fashion law symposium, especially since LV noted it has sponsored such events by other schools (Fordham Law School’s Fashion Law Institute). This, it seems to me, is a key alleged fact overlooked in the Associate Dean’s response. Moreover, the focus on comparing luxury goods to educational seminars seems to miss the mark, as there appears to be a direct overlap in the sponsorship of fashion law seminars.

I think Steve is right on every point here.   Read More…

Trademarks are forever?

Originally posted 2006-06-10 22:30:28. Republished by Blog Post Promoter

No, not necesarily, but the DeBeers name is still pretty good currency when it comes to selling diamonds:

A New York diamond merchant acted in bad faith when he sought to capitalize on the famed De Beers name as part of his plan to sell diamonds on the Internet, a federal judge ruled on Friday.

U.S. District Judge Denise Cote ruled Rosenblatt violated trademark law through the use of the name DeBeers Diamond Syndicate Inc. that rightly belonged to plaintiffs De Beers LV Ltd., a joint venture of De Beers and luxury goods maker LVMH Moet Hennessy Louis Vuitton.

Rosenblatt’s decisions to apply for dozens of Internet domain names with the name De Beers, obtain a Web site proposal and seek investment dollars “were done in entirely bad faith,” she said.

This doesn’t sound like a particularly hard case, or an interesting one — so ordinary that it raises, in fact, the interesting question: How did this litigation every get to trial?

UPDATE:  I decided to look into the question on PACER.  This was actually some pretty hard-fought litigation, as obvious as the outcome looks in retrospect.  One opinion and order by Judge Cote involved motions to strike affirmative defenses.  The affirmative defense of unclean hands was stricken (not “struck”?); the motions to strike the affirmative defense of lack of standing and to dismiss the declaratory judgment counterclaim was denied; the motion to dismiss Sherman Antitrust Act counterclaim was granted, and defendants’ motion for was joinder was denied.

It still seems hard to justify, but of course, we know so much more now than they knew then, I guess.

Who is Malletier?

Jack Russell MalletierIn 2009 I did a post whose title — “Excuse Me While I Kiss this Guy” — was an homage to the great modern institution of mangled popular song lyrics.  That particular neurological “take” on Jimi Hendrix’s wailed request in “Purple Haze” is so prevalent that an entire website dedicated to misheard song lyrics is actually called “Kiss This Guy,” and beat me to the punch by three years.  Who knew?

Knowing, it seems, is the key.  That “kiss this guy” mistake is probably based as much on the cognitive dissonance implicated in the brain’s processing of the real lyric, “Excuse me while I kiss the sky,” as any failure to enunciate by the late, great stoned Englishman Hendrix.  “Kiss the sky” is just not in our neural “type-ahead” cache, and while you might not think “kiss this guy” actually is, well, turns out it is.  Oddly enough.

Same thing with names.  Pattern recognition and familiarity are all.  Everyone, after all, knows what “a Louis Vuitton” is, and wants one — real or not. The result has been years of fun and, for many of those I love, profit.

Louis Vuitton Malletier, Plaintiff Even I had my moments on that score, and when, as a much younger man, I was tasked to hop on an Amtrak and sue a trademark counterfeiter on LVMH’s behalf in the Eastern District of Pennsylvania, I was happy to do it.  (The “LV” is for Louis Vuitton; the M is not for Malletier, in fact — the “MH” is for Moët Hennessy.  Together, they’re a “group.”)  The resulting decision, Malletier v. Veit, was kind of important for about ten minutes.

But who is that plaintiff?  Who is this Malletier guy?

The plaintiff in my case, of course — and in Malletier v. Dooney & Bourke, and a whole bunch of other cases — was not a guy named Louis V. Malletier.  Of course.  You knew that.  It is, rather, the firm called Louis Vuitton Malletier — and as you also knew, a “malletier is, in French, literally a trunk-maker, or manufacturer of luggage and suitcases.”  It comes from the French word malle, which means trunk but related, as is readily evident, to the word “mallet” for hammer.

But, of course: Louie the Trunk-Maker. Read More…

Don’t mess with Louis

Mohammed Sharif, with his inimitable excitement about the whole thing, posts on his Fame Appeal blog about —

An evening at Louis Vuitton headquarters in NYC, [at which]  Michael Pantalony Esq., protector of Intellectual Property of Louis Vuitton Moet Hennesey Fashion Group (LVMH) stated “If you come close to copying the (Louis Vuitton) Mark you will hear from LV”

Pantalony was the keynote speaker the a CLE program held by the Fordham Fashion Law Institute, as it turns out, which I would have certainly been interested in attending if I’d known about it.  But that is blocks away from here.

Anyway, I can vouch for the sentiments:  Sooner or later you will, indeed, hear from LV — one company that has bona fide infringement problems and, from what I can tell, does not push the envelope unreasonably.  Indeed, if anything, LV counterfeiting is so ubiquitous that its enforcement program stands for the proposition that all the law in the world and all the lawyers — and good ones — can’t solve certain legal problems.

My point being, that doesn’t mean still more law, or lawyering, will do so.  To the contrary, what do they say about someone who keeps doing something over and over again and expecting different results?

That does not mean I do have a solution for LV’s problems.  I don’t.  And I have tried.