Finally, an iPhone that promises perfect coverage -- not to mention a wide range of apps, appropriate to any eye color and skin tone.  Look for the "eyemobile" at Kohl's, at least until Apple catches up with this latest riff on its trade dress.

Special note to Eric Schmidt over at Google:  This palette could prove handy the next time Steve Jobs' lawyers try to give you a (virtual) black eye. 

Via Engadget. 

Is Kate Spade clutching at Olympia Le-Tan's idea of creating handbags that look like vintage books?  Ms. Le-Tan thinks so -- and called the company formerly owned by Kate "a big fat copy cat" on Twitter. 

Olympia Le-Tan's clever clutches, including titles like Moby Dick, were introduced last fall, and examples of Kate Spade's trompe-l'oeil library were displayed to editors during New York Fashion Week in February.  While even a lawyer of Olympian prowess would have to concede that no creative client can copyright her idea (as opposed to a specific expression of it), the potential for a trade dress or unfair competition argument could be interesting.

Meanwhile, let's hope that both stylish students of literature have taken into account any lingering rights of the authors and original cover designers.  Otherwise, attorneys for the various parties may be tempted to use the "books" as clubs. 

Via Salon.

UPDATE:  Curious about the idea of the book as aesthetic signifier, without having to bother with all those darn words?  Check out this series of recent posts over at Murketing.   

The world's chilly response to the faux-Aboriginal costumes of ice dancers Oksana Domnina and Maxim Shabalin led them to lighten up on the references a bit for the Olympics -- literally -- but their original dance scores still lowered the Russian pair from 1st place to 3rd, with one round of competition to go. 

Was it the skating or the styling that led to the duo's drop in the ranks?  We'll never know.  But more generally, what is the global standard when it comes to cultural borrowing?



Who Owns the Ice?

Perhaps in a perfect world, culture could flow freely without anyone taking offense.  Given the history of prejudice and power relations, however, world peace even on the cultural level isn't going to happen anytime soon. 

So, setting aside the question of whether folk dancing on ice is the best theme for an Olympic event, not to mention whether any form of dancing on ice is "authentic," how are skaters to choose a theme that is aesthetically and ethnically inspiring but not offensive?

While leftover snow still blankets the streetcorners where fakes are often found, e-commerce sites -- and their e-counterfeit counterparts -- just glow on.  Recent announcements by brand protection firm MarkMonitor and fashion house Louis Vuitton, however, may mean lights out for many online sources of fake merchandise.

Search and Destroy

MarkMonitor's new "Site Staydown Service" targets the myriad of websites that pop up in a search for any popular brand, many offering fakes.  For consumers, the proliferation of these sites means a lot of extra clicking -- and constant questions about whether a particular site is offering legitimate discounted merchandise or cheap knockoffs.  MarkMonitor's goal on behalf of clients like True Religion jeans is to get fake-selling sites down and keep 'em down, presumably with the cooperation of internet service providers who could face liability for continuing to provide a platform for known counterfeit sales. 

True Religion's own website, unusually transparent when it comes to acknowledging the counterfeit conundrum, has an impressive list of nearly 200 suspect e-commerce sites that are "under investigation."   

Destroy the Search

One of the easiest ways to spot a fake is a misspelled brand name.  Chanel doesn't sell "Channel," Prada doesn't sell "Prado," and genuine Dolce & Gabbana always has 2 b's and one n.   

Thus when Louis Vuitton (yes, 2 t's) learned that eBay was paying search engines to call up links to eBay's site in response to searches for terms like "Louis Viton" or "Wuiton," the luxury label expressed concern that the online marketplace was encouraging the sale of fakes and harming LV's reputation.  Last week a French court agreed and, in the latest of a series of judgments against eBay France, ordered the company to pay 200,000 euros in damages plus 30,000 euros in attorneys' fees and 1,000 euros for each future violation.  (In U.S. dollars, the 200,000 euros is approximately $275,000, or almost $23,000 for each letter in Louis Vuitton.)

Of course, legitimate but orthographically challenged sellers and buyers will have to step up their spelling skills.  (True confession:  Mine are mediocre, but I blame it on the parochial school teacher who used to bang our little heads against the blackboard when we got our spelling words wrong.  Thank goodness for spell checkers!)  Then again, training for the fashion spelling bee will keep you from bragging about the great deal you got on your new "Vuiton." 

Or sending a friend a link to Counterfit Chick.


Thanks to all those who sent tips, including Melissa Astudillo, Jennifer Huang, and Counterfeit Chic's favorite anonymous French correspondent!

Space: the final frontier.  For some women, it's that elusive extra foot of closet space.  For others, it's the half-inch between comfortably buttoned skinny jeans and a tortuously tight waistband.  And for still others, it's the tote bag that will hold everything from gym clothes to legal briefs while maintaining an elegant silhouette. 

Longchamp's foldable, expandable "Pliage" bag entered the space race over a decade and a half ago, and it has since become a must-have for the chic traveler who's done a bit of shopping along the way and needs to tote her loot home.  That success has apparently led to a few more knockoffs than Longchamp's lawyers would like.

This Longchamp ad from today's WWD is further evidence that the trade dress trendlet Counterfeit Chic spotted some time ago is gathering momentum.  Sure, we've seen admonitory advertising about intellectual property before -- Chanel, Joseph Abboud, even Little Tree air fresheners -- but they've focused on trademarks, not trade dress.

All in all, a revealing use of (ad) space.

UPDATE:  According to the Longchamp website, the "Pliage" bag -- actually, one of a series of similar designs in the Longchamp "Pliage" line -- is also the subject of a U.S. design patent.    

A year and a half after designer Sophie Theallet made news by casting only models of African descent in her debut runway show, Project Runway alum Daniel Vosovic has drawn similar attention this week with an all-Asian lineup. 

While the new focus on diversity --  not to mention a global customer base -- is a welcome change from the presumptively pale beauty standards of decades past, a question remains:  Is such specific model selection legal? 


 And that's only federal law.  Washington, D.C., for instance, specifically prohibits employment discrimination on the basis of "personal appearance."  Of course, my hometown isn't exactly known for high fashion, the current First Lady notwithstanding, but just imagine the potential effect of a such a law on New York Fashion Week. 

As a practical matter, however, neither Sophie nor Daniel nor even a designer who resists modern norms and aesthetics and hires only white models is particularly likely to risk legal challenge.  The working lifetime of the average model (a small handful of supermodels aside) is similar to that of a laboratory fruitfly -- here today, gone tomorrow.  It's unlikely that any particular model would wish to spend much of that time suing a designer who didn't hire her for a particular show, nor would she wish to risk alienating other designers.  And even if she did bring an action, it would be exceptionally difficult in most cases to show that it was her race and not her walk or some other characteristic that led to the designer's decision.    

So congratulations to Daniel V. on an auspicious debut and on reminding the fashion world of an issue that's far from merely black and white. 

P.S.  Happy Valentine's Day / Chinese New Year / Presidents' Day / Mardi Gras!   

Counterfeit Chic joins those saluting the creative genius of Lee Alexander McQueen -- frequently copied but never surpassed -- and mourning his passage.  

Just in time for New York Fashion Week, stories of a potentially significant lawsuit are splashing around the 'net -- and this one's no fish tale.

A complaint by Marc Jacobs against Christian Audigier's Ed Hardy label joins the recent trickle of trade dress claims which, if successful, could become a flood over the next several seasons.  This one is a tale of two totes, the Marc by Marc Jacobs "Pretty Nylon Little Tate" (left), which is quilted with a scrambled version of the Marc Jacobs trademark, and the Ed Hardy "KOI Jana Nylon Tote."  In describing the claimed trade dress, the complaint notes not only the Marc by Marc bag's dimensions and overall appearance but also the quilted pattern, knotted handles, vertical side pockets, metal plaque, and other details.  Both totes are available in multiple colors and at similar price points (around $150-$160 full retail).  Additional embellishment aside, the alleged copy appears, well, right on the Marc. 

This case is a particularly interesting test of the growing trade dress trendlet, given the prominent appearance of each party's trademark along with the claimed trade dress.  The Ed Hardy tattoo-style fish print further complicates a demonstration of likelihood of consumer confusion with respect to who created each tote.  On the other hand, Marc has sold thousands of his bags and seen them included in numerous editorial layouts -- and, short of a design patent, a trade dress claim is the only opportunity under U.S. law to potentially prevent a competitor from taking a widely recognized design, slapping on an extra element or two, and selling it as his own.   

For good measure, Marc Jacobs also alleges infringement of the trademark in the scrambled-letter version of his name, as well as California unfair competition claims.  The trade dress claim is the most interesting argument, however, though it remains to be seen whether the court will take the bait. 

P.S.  You didn't think that Christian Audigier was the only one to have been allegedly lured in by the Marc by Marc Jacobs tote, did you?  Here's another somewhat fishy example, this one from Forever 21:
Thanks to all who  wanted to hear from Counterfeit Chic regarding this case, including dedicated legal fashionista Kristina Montanaro!

We already knew that sometime Presidential candidate John Edwards cheated on his wife -- while she was battling cancer.  And that he spent almost 2 years denying paternity of his daughter, despite all evidence to the contrary.  So perhaps it should come as no shock to be told that Edwards also attempted to lie with his fashion labels.

According to a new book by Andrew Young, formerly Edwards' loyal associate and partner in deception, Edwards had the author remove a "made in the USA" label from his suit to sew in place of Edwards'  own "made in Italy" label prior to a union-sponsored event in Las Vegas.  The alleged alteration wasn't illegal, unless Edwards tries to resell the mislabeled item, but it does seem in keeping with the rest of Edwards' execrable ethics. 

With pseudo-patriotic stitching switches like that one, it's no wonder the U.S. garment industry is concerned about maintaining domestic production.  Or that the theme of an excellent ALMA event at the Italian Consulate in New York last week was "Protecting 'Made in Italy' through Intellectual Property Law."  (Nice speaking to you!) 

Oh, and John?  When you're done pushing the buttons of garment manufacturers on both sides of the Atlantic, you might consider giving Andrew his label back.

Via WSJ. 

Magistrate Judge Theodore H. Katz of the Southern District of New York must be glad that getting dressed for work involves hiding his suit under a black robe.  After having his decision in JA Apparel Corp. v. Abboud overturned by the Second Circuit, reading another round of "hefty" briefs from the corporation and the designer, and writing a  new 59-page opinion released yesterday, the last thing any judge would want to think about is menswear. 

Still, the name game may not be over yet.  While the designer may use his name in a descriptive fashion that is not likely to cause confusion with the JOSEPH ABBOUD trademark he sold to JA Apparel, the parties will likely continue to spar over details like the size and placement of Mr. Abboud's name in his print advertising. 

A bit sad, really, to consider all of the creative layouts and ad pages that could've been purchased with the money spent on legal fees -- unless, of course, you're doing the billing.

Previous posts:  A Rose By Any Other Name, More Name Games: Joseph Abboud, Still More Name Games: Joseph Abboud

For the online discount retailer Gilt Groupe, it's a Monday.

This morning's comment thread on a routine Gilt blog post about an upcoming theme sale -- merch to make those New Year's resolutions a bit more palatable -- turned into a forum for concern about the alleged sale of a counterfeit handbag on the site.  After Zun39 posted a claim that a previously purchased Cole Haan bag was fake, but that (s)he was keeping it anyway, other users responded with concern.  After all, approximately 50-80% off retail is a tremendous bargain, but only if the product is real in the first place.

Gilt should be proud of its loyal member/customer base, however.  Dozens of satisfied customers joined the thread to contradict the allegation.  Many surmised that Zun39 was from a competing site, perhaps engaging in a bit of sock puppetry -- so last decade.  By the time that Gilt CEO Susan Lyne weighed in to note that Gilt does not sell fakes and in fact deals directly with Cole Haan as a "brand partner," the extra assurance was almost unnecessary.   

Nevertheless, the consumer anxiety apparently provoked by the post speaks to a real concern.  It's one thing to spot fake merchandise on a street corner; it's quite another to figure out whether a website is selling the real thing or not.  Gilt is an authorized discount seller of each brand featured on the site and posts a guarantee of authenticity with each product description.  But the success of Gilt Groupe, its French predecessor Vente-privee, and other legitimate online discounters like Rue La La, Ideeli, and OutNet has spawned many copycat sites that only pretend to sell the real thing -- often at prices low enough to be irresistible but higher than those for admitted "replicas."

As always, Counterfeit Chic's rule for the cautious consumer looking for an online bargain is caveat emptor.  But Gilt, like other established sites, really is golden.  

As cultural property goes, there may be no symbol more contested than the swastika.  But whether it calls to mind Hitler's horrors or Hindu/Buddhist blessings, one place that Counterfeit Chic didn't expect to see it was on the new Marc Jacobs Fluo Passementary Lily Hobo bag at Barneys. 


True, Marc's presumably inadvertent passementerie faux pas is a left-facing version rather than the right-facing symbol used by Nazis and other right-wing nasties, but it still packs a an unpleasant psychological punch for the unwary shopper.  As in right hook.  

This isn't the first time in recent memory that a swastika has found its way onto an otherwise innocuous bag.  In 2007, the Spanish fast-fashion chain Zara reportedly recalled a bag decorated with cheery flowers, bicycles, and yes, a swastika.  Perhaps Mrs. Jacobs' charming son will consider doing the same.  In the meantime, however, travelers to Germany and other countries that legally restrict the display of the infamous symbol should play it safe and choose one of Marc's other designs for spring.


P.S. For an in-depth study of actual fashion in Germany from the end of WWI through the Third Reich, check out Prof. Irene Guenther's Nazi Chic?

Counterfeit Chic is incredibly surprised and honored to have been named among the top 100 law blogs -- sorry, blawgs -- by the ABA Journal.  (L)aw, shucks, guys -- thanks.  Given that "Fashion Law" wasn't even a recognized field when I started writing, it's a victory for legal fashionisti everywhere to have Counterfeit Chic among the top 10 in the "Practice Specific" category. 

On a personal level, I'm particularly touched since life's been too busy to post as regularly as usual this semester.  (And if you think that Counterfeit Chic has been neglected, you should see my houseplants.)  

The good news is that Counterfeit Chic's wonderful readers, email correspondents, and now the ABA Journal editors -- not to mention the end of the semester -- have inspired me to fire up the old laptop and get back to writing on the 1-2am shift.  As for you all, please get out there and VOTE for your favorite in each of 10 categories!  (You'll have to sign in, but it's quick and painless.) 

And before the music starts and I get pulled off the stage by glamorous amazons, let me also congratulate colleagues and friends who made the list -- and those who didn't but surely deserve recognition for all of their hard work.

 

Lee Eisenberg is.  And now the former Esquire editor-in-chief and Land's End creative director has written a new book,  Shoptimism, to explore how we're sold products, why we buy them, and ultimately -- in the words of the subtitle -- Why the American Consumer Will Keep on Buying No Matter What.

Interestingly, even in the depths of a recession as our buying behavior has changed forever (or at least we've vowed that it has), Lee isn't rushing to condemn consumerism.  Instead, he's more interested in the "is" than the "ought," and he's done everything from becoming a Target employee (briefly) to researching the neuroscience of shopping in his quest to explain both the sell and the buy.  In the tradition of insightful books like Rob Walker's Buying In and Paco Underhill's Why We Buy, Lee holds up a magnifying mirror to his readers while we shop -- and ultimately reassures us that we don't look fat in that.    

And yes, there's even a descent into the world of counterfeit goods, with your favorite law prof playing Virgil to Lee's Dante for a visit to Canal Street.  (In chapter 15 -- not that you should read that bit first!)

Has Colbie Caillat plunged into shark-infested waters with the "Fallin' For You" video from her Breakthrough album?  Watch the video here, or just check out the image below.  There's something awfully familiar about that surfboard...

...or is there?  It's not quite the Louis Vuitton toile, and the initials are "JN" rather than "LV."  In the context of the video, it's just the sort of obvious fake that the comically less-than-appealing guy who's not Colbie's type -- but whom she's falling for anyway -- might own. 

We've all seen imitation goods so poorly rendered that they wouldn't fool a myopic Martian on a dark night.  And there must be a market out there beyond mere video fiction, or LV look-alikes wouldn't keep showing up on shady street corners and in dark corners of the internet, next to the "Prado" and "Channel" bags.  But why would any self-respecting counterfeiter turn out such bad fakes?

It turns out there's method to the madness.  In theory, these inept imitations could allow a manufacturer/importer/seller to avoid liability under the rationale that there's no likelihood of consumer confusion.  In practice, however, courts don't like apparent bad actors.  Take a look at the evidence from a case decided last year, Louis Vuitton Malletier v. Ly USA, Inc. et al.:

Not even close.  But to say that the district court didn't buy the "Ly" would be an understatement; the total judgment in favor of LV, including attorney's fees, totaled over $3.5 million. (Appeal pending.) 

So, Colbie, a word of advice:  Don't take the plunge.  He's not worth it!   

Fashion flashes by on the runway in minutes, but the behind-the-scenes design and production work is much more painstaking and less glamorous.  In New York, that gritty reality of fashion production -- so key to turning creative visions into actual clothing -- is being eroded by rising rents, the movement of manufacturing overseas, and the potential re-zoning of New York's Garment District. 

Didn't realize that there was a specially zoned area for fashion production in NYC?  Or a long and influential history of garment manufacturing here?  Check out the documentary film Schmatta tonight at 9pm on HBO.  (An early copy didn't arrive in the mail as promised, so no review -- but I'll probably take a look anyway.)

Then, to learn more about the current concerns of those who fear losing the crucial remaining production capacity left in NYC, read the op-ed from Nanette Lepore and Robert Savage that was published in the New York Times on (of course) Labor Day.  And take a break this Wednesday at noon and head over the the Button & Needle sculpture (7th Avenue & 39th Street) for a "Save the Garment Center" rally. 

The dress code is fashion-forward, of course.

Is Michelle Obama the new Barbie?

First she chooses an inaugural gown by Jason Wu, who got his start designing dresses for dolls.  Now Brooklyn-based sculptor Jason Feinberg has created a series of Michelle Obama dolls -- er, make that "action figures" -- wearing dresses in which Mrs. O appeared during the campaign.  Yes, there are the red-and-black Narciso Rodriguez from the acceptance speech in Grant Park, the purple Maria Pinto "fist bump" sheath, and the black-and-white Donna Ricco dress from White House/Black Market that entranced watchers of "The View." 

While the First Lady made her displeasure with Ty's "Sweet Sasha" and "Marvelous Malia" dolls known, it's unclear whether she'll object to seeing her own image in plastic -- or whether it would be good politics to attempt to decapitate the dolls with a right of publicity claim.  (Yes, she's a public figure and the First Amendment protects speech; no, these dolls don't seem to constitute commentary of any sort.)  Suffice it to say that the action figures were not authorized, but that overt legal action is not terribly likely.

And what of the designers whose dresses have made fashion history?  Paradoxically, if Feinberg had reproduced the dresses themselves and sold them in a Brooklyn boutique, their original designers would have had little or no claim under U.S. law.  However, the same may not be true of the 6-inch versions. 

Let's consider each dress individually.  Apart from the purple Pinto, which is probably too simple to trigger any sort of protection (belt sold separately), the doll-maker may run a slight risk of playing (court)house with his creations.  Either Donna Ricco herself or whoever created the black-and-white fabric pattern might have a copyright claim, depending on how closely Feinberg copied the print.  And if either Narciso or Donna created a sketch of his or her respective dress before stitching it, the drawing (though not the dress) would be subject to copyright -- making the doll theoretically an infringing derivative work.  Of course, Feinberg presumably copied the dolls' dresses from a source other than the designers' original sketches (if any), most likely a press photograph.  That brings up another copyright issue entirely, one with which Shepard Fairey is all too familiar.  But then, which copyrighted photos served as Feinberg's source? 

At the end of the day, the doll designs strike Counterfeit Chic as more darling than daring, legally speaking.  Perhaps a coordinating Pennsylvania Avenue Dream House will be the sculptor's next project?

Many thanks to longtime reader Jamie Kiburz for the tip!

Via the Chicago Tribune.

Alexander McQueen may have incorporated his signature skull motif into this fall's "Faithful" motorcycle jacket bootie (below left), but it wasn't enough to scare away a true pirate.  Steve Madden copies creative shoe designers so frequently and so, well, faithfully that it's often quicker to identify the few changes than to catalog all of the similarities.  In this case of the Seryna bootie (below right), only the substitution of a plain zipper pull and a few minor details of construction (quality of materials, sharpness of the foldover points) give away the game.

The real difference this time around, however, is that the knocked-off designer hasn't accepted being K.O.'d -- and the next round will take place in federal court.

But wait, you say, U.S. law doesn't protect clothing designs against copying.  Hence Steve Madden's apparent business strategy:  copy everything from sole to shoelace, but avoid the legally secured trademark. 

While the complaint isn't yet available online, lawyers for Alexander McQueen are part of an emerging trendlet, namely a return to trade dress claims.  Ever since the Supreme Court severely limited the availability of trade dress protection for product configurations almost a decade ago, such claims have been few and far between -- and as a practical matter limited to famous, classic designs or design elements that have been around for years.  The secondary meaning requirement hasn't disappeared, but determined attorneys representing clients from Louis Vuitton (against Dooney & Bourke) to Trovata (against Forever 21) have been working to reinvigorate this particular avenue of intellectual property protection.  Success has been limited thus far, but legal reasoning springs eternal. 

For Alexander McQueen, this means noting that Faithful devotees have included Lindsay Lohan, Mary-Kate Olsen, Rihanna, and the photographers who fall at their feet.  Surely, the argument goes, such extensive editoral notice has established a link in the public mind between design and designer sufficient to qualify for trade dress protection.  Time -- and the Southern District of New York -- will tell. 

From a big picture perspective, if this trickle of trade dress claims continues, will it have a significant effect on the frequent copying of creative clothing?  

Yes and no.  Established, well-known labels with large marketing budgets and/or celebrity clients -- in other words, those who could demonstrate that some of their most popular designs have secondary meaning -- would have more protection than they do now.  Of course, those are also the labels least in need of additional protection, as many customers already seek out their (legally protected) trademarks.  While counterfeiters of those trademarks abound, there is at least law on the books against such activity.  Emerging designers, by contrast, are less likely to have their still-obscure trademarks counterfeited than to have their designs copied.  And since emerging designers are relatively unknown and their designs are unfamiliar to the public, they are far less likely to qualify for trade dress protection and would suffer by comparison.     

Whatever the strength of the trade dress trendlet, it will be quite a few seasons before its full impact becomes apparent.  In the meantime, Alexander McQueen will simply have to hope that his clients keep the faith.

Via WWD. 

With the first crisp days of autumn upon us and the semester well underway, it's time for a counterfeit coffee break -- this time courtesy of Nescafe.  

"Really?" you ask.  "The brown powder that simulates fresh-brewed coffee when hot water is added -- about as convincingly as dirt might?" 

Yes, really -- but with a twist.  Nescafe has a new ad campaign accusing Starbucks, whose own trademark has been copied far and wide, of knocking off Nescafe's infamous instant coffee.  At much higher prices.  (In Counterfeit Chic terms, it's "knocked up" rather than "knocked off" -- but that doesn't make it any tastier.) 

Of course, the corporate baristi behind the Starbucks Via Ready Brew are well aware that you can't be held liable for copying a mere idea.  Even a bad one.

As for me, make mine tea.

Via Idea Sandbox and Gothamist.  

Fashion design is seasonal, ephemeral, and fast-moving. 

Traditional crafts, including textiles, are timeless, long-lasting, and slow to evolve.

UNESCO, however, has decided to examine the common ground between these two "polar opposites" in its first Forum on Cultural Industries, convened today in Monza, Italy.  The focus is on commonality -- fashion and crafts "share the same values of excellence, innovation and creativity" -- and on the culture sector's ability to contribute to both economic and social development.

From the sound of things, it will be quite the global quilting bee -- with Lanvin's master artist/craftsman Alber Elbaz at the center of the hive.