A from your favorite law prof: Click here. (Short answer: Definitely not in this case. Long answer: Here's the book -- which I'm told is not a bad beach read, as nonfiction goes.)
Thanks for asking!
About the name: Trademark. Anyone assuming it's a sly reference to the contentious Burch vs. Burch legal battle of last year, in which one of the key issues at hand was C. Wonder's alleged copycatting of Tory Burch products, would be wrong. "I can't even tell you how much I did not think about that. Not even once," said Pookie. "It's actually quite ironic if you think about it, but the name came way before that," continued Louisa. Rather, it was inspired by the idea of a signature look -- your trademark sweater, or your trademark shoes. They toyed with calling it Uniform, but, alas, they couldn't get the trademark.The denials have the ring of truth, and not only because of the length of the planning process. After all, naming a brand after a family feud wouldn't exactly create positive associations.
American designer Perry Ellis, celebrated in a new and comprehensive biography, was a true innovator -- in fashion design and in law.
Not only did he embrace licensing as a means of extending his empire, but his eponymous company also posthumously trademarked his signature shoulder pleat on men's shirts (and subsequently used in many other garments, from coats to women's jackets). Quite a cutting-edge trade dress registration for 1997.
Photo of Perry's pleat and drawing for U.S. trademark number 2037960. "The mark consists of a pleat of fabric which runs from the shoulder to the cuff on each sleeve of a shirt which is not part of the mark but is shown to indicate the position of the mark."
Congratulations to designer Jeffrey Banks -- an American original in his own right, as well as an eloquent advocate of design protection -- and to his co-authors on a beautiful volume lauding the all-too-short life and long-lived influence of one of the pillars of American style. Enjoy the book, but remember, please don't pilfer Perry's pleats!
"I've got friends with copied pieces," says Philo. "My mum's even got a knockoff bag!"So far, predictable. The standard "cool" designer response to copying is always to invoke the f-word. ("Flattered," of course.) She's even got her Coco quotes down.
"I love it," she says. "I'm nothing but flattered." Like Coco Chanel before her, Philo feels that when you are not being copied, "that's when it's time to worry."
Counterfeit Chic has had several inquiries from fashion folks uncertain about what Instagram's new terms will mean for them. If the terms as written take effect on January 16, will Instagram have the right to sell their names and likenesses without permission? Would it be possible for a brand to use a model in an ad without paying a fee? Could a competitor legally copy a photographed design or trademark?
Although Instagram --or its PR team -- insists that it never intended to do any of these things, the fashion community has a legitimate basis for concern. There are plenty of instances where companies felt free to exploit others' names and likenesses without permission or payment, so why trust a company to respect your rights when its lawyers expressly take them away?
Better watch out ...
As South Park cleverly noted in its classic (albeit crude) episode on iTunes updates, most people don't bother to read online terms of service. However, the announced changes to Instagram's terms illustrate why this can be a big mistake.
Posting a photo on any social network site raises at least three significant legal concerns:
Ordinarily, U.S. copyright law protects photos, and a patchwork of state laws recognizes each individual's right of publicity, limiting the use of your name or likeness without permission. But accepting terms of service like Instagram's can wipe out those legal protections with a single click.
What's naughty and nice
For anyone wishing to keep control the rights in material on Instagram, the first four paragraphs in the section entitled "Rights" raise substantial problems.
This year's Cyber Monday may be merely part of a cyber shopping season -- for the first time over half of American consumers shopped online during the holiday weekend -- but one thing hasn't changed: the counterfeiting conundrum we might call "cyber shrinkage."
According to an eye-opening new report from online brand protection firm MarkMonitor, one in five online bargain hunters lands on sites selling fakes instead of legitimate discounted merchandise. These aren't the shoppers deliberately looking for counterfeits or "replicas," mind you -- these are shoppers using search terms like "discount," "clearance," and "outlet." It turns out that honest bargain hunters are demographically almost identical to their counterfeit-seeking cousins in terms of education and household income, but there are 20 times as many of them. That adds up to a lot of otherwise savvy sale shoppers diverted to sites selling counterfeits. Even worse news for brand owners: sites selling fakes are sticky. Shoppers stayed longer and were more likely to place counterfeits in their shopping carts, potentially believing that they'd simply found discount deals.
Once more unto the breeches, dear friends, once more!
"How do you keep reinventing?"
"You copy," he said. "Forty-five years of copying, that's why I'm here."