It's Monday, the evergreen trees have been kicked to the curb, and the last bits of confetti have been swept up from the streets.  Tomorrow's Epiphany notwithstanding, the holidays are officially over.  Whew. 

Here's hoping that you started 2009 by kicking up your heels -- though not necessarily the Forever 21 pair recommended by Time Out New York (right), which bear a strong resemblance to a Christian Louboutin design from last spring (left).  Interestingly, F21 may have been attempting to test the limits of CL's red sole trademark by creating an all-black pair with black soles and an all-red pair with red soles.  Once again, an aesthetic functionality debate may be lurking out there somewhere, but it hasn't yet risen to the surface of the bargain bin.

Meanwhile, the inventors of the ubiquitous novelty spectacles with the new year's numerals are no longer looking at the world through rose-colored glasses.  Richard Sclafani and Peter Cicero have decided to cease production, citing competition from cheap infringements of their design patent (D335,134).  The Seattle Times reports:

"I get depressed on New Year's Eve," says Sclafani. "It used to be such a thrill to turn on the TV, and there were our glasses! Now, all I see is knockoffs."

Happy New Year from Counterfeit Chic!

Posted by Susan Scafidi to Designs & Designers at January 05, 2009 | Permalink

Yesterday, in the final moments before the start of Hanukkah and with less than 100 hours to go before Christmas, Counterfeit Chic inadvertently became part of the river of humanity flowing past and through the aisles of Macy's Herald Square flagship -- and noticed surprisingly few shopping bags.  Sure, there were tourists photographing one another both inside and outside the store, but the store clerks were practically leaning their elbows on the cash registers and yawning. 

This tweet from Rick Marshall confirmed the shopping story of the season:

Retailers are doing crap business, we're told, but the knockoff guy outside Macy's right now has a line a block long. 

But hey, maybe Santa will provide an 11th-hour retail rescue -- Macy's still believes.

Posted by Susan Scafidi to Culture of the Copy at December 23, 2008 | Permalink

Counterfeit Chic is three years old today!  Many thanks to all of you, from the wonderful and engaging readers who make late night blogging a pleasure to the fabulous fellow bloggers like Settle It Now and Current Trends in Copyright, Trademark, & Entertainment Law who have recently named Counterfeit Chic among their must-reads. 

To celebrate, here are three tiers plus one to grow on -- exquisite, but alas presumably counterfeit -- from Ron Ben-Israel Cakes.  Any volunteers willing to help dispose of the telltale trademarks?

Posted by Susan Scafidi to at December 16, 2008 | Permalink

Think you're having a bad fashion day?  It could be worse -- at least you're probably not one of the poor souls identified on the pages of Glamour magazine as a cautionary "don't," your identity semi-protected only by the addition of a black anonymity bar across your eyes.  While Counterfeit Chic usually considers Glamour Dos and Don'ts to be a public service, every now and then a member of this august fashion police force turns out to be a rogue cop. 

Among Glamour's televised "20 Wedding Dos and Don'ts" is an important fashion "don't":  Don't go broke on your wedding dress.  No argument here.  Yes, the dress should be incredibly flattering and worth saving for your granddaughter someday.  No, you shouldn't let the wedding industrial complex convince you that your future marital happiness is directly proportional to the price of your gown.

Some of the budget alternatives suggested on camera include buying secondhand (after all, your pre-owned dream dress was probably only worn for a few hours -- if at all) and looking into your favorite designers' or boutiques' sample sales.   And by the way, there is also a wide range of long, white dresses available without the premium that seems to accompany specialty sales; my own dress was a satin evening gown that the designer happened to have created in white.  Nontraditional color/style choices may yield even better bargains. 

One not-so-Glamourous expert, however, actually advocated buying a knockoff: 

Legal, yes, at least in the U.S.  But it's no wonder that bridal boutiques ban cameras and wedding dress designers resort to copyrighting lace designs and touting the value of authenticity in an effort to gain some traction against design pirates.

Tradition may call for the bride to wear something old, something new, something borrowed, and something blue  -- but it's probably better wedding karma if the "borrowed" item is loaned voluntarily. 

Posted by Susan Scafidi to Culture of the Copy at December 16, 2008 | Permalink

It's been a while since Counterfeit Chic and friends have caught Forever 21 with its hand in the design cookie jar -- but it looks like the fast-fashion chain may be reaching for a holiday treat in the form of a knockoff Balenciaga bag.  And we do mean almost the exact form.

The righteous Jennifer Moreno over at BagBliss sent word that F21 has come up with a "tragic bag, that's sure to tick off any devoted Balenciaga-lover."  It's all there -- the angled Balenciaga corner buckles, the distinctive half-moon patch design, the extra-long zipper pulls, even the whipstitching below the handle, all in not-so-luscious faux leather.  Only the slightly altered proportions of the knockoff (below right -- but you knew that) and the manner in which the handle is attached reveal the truth. 

During the current economic meltdown, Balenciaga's classics are among the few things NOT marked down to drastic levels, a fact that F21 may have noticed -- and one that makes this copy even tougher for beleaguered retailers to take. 

But is it legal?  F21 probably hasn't run afoul of copyright this time, but such a distinctive, instantly recognizable design is a prime candidate for trade dress protection.  When the design is so familiar that it doesn't need a label, copyists beware.  And F21 -- once again, what were you thinking?  There's so little intellectual property coverage for fashion designs under U.S. law, yet you seem to repeatedly reach for the protected bits.  How many times has Mom told you to keep out of the cookie jar?

Not yet convinced that Balenciaga is as distinctive as, say, Gucci's stripes and horsebit or Chanel's quilting and chains?  Check out Mary Ping's interpretation for Slow and Steady Wins the Race, her fascinating, limited-edition mediation on culture, mass and class, and the "creative progression of clothing design."  If she can create a canvas shadow version, then Balenciaga is clearly part of the pantheon of purses.

Many thanks to Jennifer Moreno for the F21 tip and to Marie Choi for reminding me about the Slow and Steady Wins the Race project!

Posted by Susan Scafidi to Designs & Designers at December 13, 2008 | Permalink

Like other artistic media, fashion is engaged in a constant struggle between the creative and the commercial -- and lately it seems that the commercial is winning.  While Damien Hirst isn't painting pastel seascapes for Florida hotel rooms and Philip Glass isn't composing advertising jingles, avant-garde fashion designers are under pressure to make their work merely pretty and wearable, in part because of the difficulty of maintaining exclusivity.

In a recent article, the Dutch design duo Viktor & Rolf note, "In our information society, mystery is very hard to maintain, and what is avant-garde today is mainstream tomorrow.  It can be copied and marginalized very easily."  

The upside?  Viktor & Rolf exploiting their name recognition to knock themselves off for H&M.  The downside?  A design duo that once showed high-concept atomic bomb silhouette couture instead offering frilly blouses and beaded dresses for Spring 2009.  Intricate and beautiful, yes; progressive, no.

Posted by Susan Scafidi to Fashion/Art at December 10, 2008 | Permalink

'Tis the season for stockings to be hung by the chimney with care -- but first, they have to be found, taken out of tissue paper, and inspected for leftover lumps of coal from last year.  In many homes, this involves a trip to the attic or the basement, where slightly battered cardboard boxes marked "Xmas" hold happy memories.  New York apartments, however, typically lack such generous storage space, and it was thus that I found myself at a local ministorage facility over the weekend, searching for my favorite stocking.

While surveying a stack of boxes that look like something from an Indiana Jones movie and trying to remember where the Christmas ornaments might be, I overheard a heated negotiation in an adjacent area.  Someone was obviously planning to buy a large quantity of something from someone else -- well outside of the usual wholesale channels. 

I could have minded my own business.  Instead, I quietly drew the door to my unit shut and listened to the following exchange:

"Fifteen dollars."

"Five."

"Don't you like me, man?"

"Of course, I like you.  But I can't do more than five.  The economy, man."

"OK, seven fifty.  I have everything you want -- J'Adore, No. 5, everything."

[Aha!  Perfume!  And presumably either counterfeit or grey market (genuine trademarked goods flowing through unauthorized channels), unless Dior and Chanel are doing business through the same ministorage-based rep.  And $7.50!  On the street, these guys ask for at least $40 or $50 and usually get $25 or $35.  Madison Avenue could use margins like these at the moment.

The conversation continued for some time, as quantities in the hundreds, brands, and dates were established.  I began to get a bit chilly and to realize that this intrepid girl reporter thing was not getting me any closer to my Christmas stockings.]

"Anything else you want, my friend?  I can get electronics, iPods."

(Inaudible.)

"They all come from China, man.  All the good stuff."

"OK, man, this is good.  I'll find you."

(Sounds of boxes being moved, a clanging metal door, one set of departing footsteps.)

At this point it occured to me that my Christmas stockings might well be at home, put away with the seasonal table linens, rather than boxed in storage.  And in any case, I was in need of a good, stiff hot chocolate. 

As I waited for the incredibly slow freight elevator, a man rolled up beside me with a stack of boxes on a dolly.  I couldn't resist a sideways glance.  They were plain brown boxes, about the size one might use for office files but a bit flatter, with crooked handwritten notations of the contents:  D&G, DNKY, and, sure enough, No. 5. 

I thought it the better part of both wisdom and elevator etiquette to remain silent and nod politely, though as we exited on the main level, I glanced back at the posted rules and regulations for the storage area.  Near the bottom of the list was a prohibition on storing contraband -- though whoever wrote it had banned "trademark-infringed goods" rather than "trademark-infringing goods," which would technically leave my neighbors in the clear.  Still, the law of the land and the law of the ministorage facility are not identical, and I had clearly overheard a deal not likely to be burdened with customs duties, sales taxes, or the usual formalities of commerce.

And I know exactly what I don't want to find in my stocking on Christmas morning. 

Posted by Susan Scafidi to Culture of the Copy at December 08, 2008 | Permalink

Bratz dolls could be this season's hottest holiday gift -- if only because after the first of the year, they may disappear forever. 

Yesterday's court ruling in the ongoing battle between Mattel's Barbie and MGA's Bratz confirmed an earlier jury finding that the original Bratz fashion dolls and the "Bratz" name were created by a Mattel employee and thus belong to Mattel.  The judge also concluded that, while the jury was not specific as to whether it found only the original set of four Bratz dolls or their many subsequent siblings to be infringements of Mattel's copyrights, the court's own evaluation of the expressive elements of the works showed all of them to be substantially similar to the original drawings.  Bratz may be plastic, but apparently "minimalized doll noses" run in the family. 

The court enjoined further production and sales of Bratz dolls, but stayed the injunction until a February hearing.  Moreover, there's likely to be an appeal.  Still, collectors take note:  the charmed adolescence of Barbie's chief rivals may be nearing an end.

Posted by Susan Scafidi to Couture in Court at December 04, 2008 | Permalink

The intellectual property bar has lost a spirited champion with the tragic and unexpected passing of Marya Lenn Yee. 

Long before I met Marya in person, I'd known of her and the legendarily powerful but compact "girls' IP boutique," Donovan & Yee, that she co-founded with Mary Donovan.  What I didn't know is that she'd also co-founded the New York chapter of the Copyright Society -- and that she was not only a brilliant advocate who was incredibly enthusiastic about pathbreaking legal developments in her own practice and elsewhere, but also the go-to person for finding the afterparty.  And when Marya was arranging an event, there was always an afterparty.  What other named law partner would chair the only Copyright Society panel ever to include a fashion show -- and then offer to model if necessary?  

Marya will be remembered at a  funeral service on Friday, December 5, at 12:30 pm, at the Plaza Jewish Community Chapel, located at 630 Amsterdam Avenue (at 91st Street) in Manhattan.  Donations in Marya's memory may be made to SHARE. 

Counterfeit Chic's thoughts and prayers are with Marya's family and colleagues.

Posted by Susan Scafidi to at December 04, 2008 | Permalink

Many luxury brands are increasing their online presence in an effort to boost sales -- especially this Cyber Monday. 

Omega instead took out a full page ad in today's WWD, advising shoppers to beware the internet lest they end up with watches that are counterfeit or otherwise substandard.

True, distinguishing between real and fake online is a challenge -- but Counterfeit Chic is betting that while Omega may be the last word in watches, it's definitely not the last word in e-commerce.

Posted by Susan Scafidi to Culture of the Copy at December 01, 2008 | Permalink

Amid Black Friday blues and Cyber Monday concerns, one holiday shopping tradition remains as glossy as ever:  the Neiman Marcus Christmas Book.  Since 1926, the catalog has been offering luxury presents for the good girl or boy who has everything.  And starting in 1960, the fantasy gift list has also included a "His and Hers"selection -- matching planes, a pair of camels, or a Jaguar coupe for him and a jaguar coat for her, anyone?  (OK, maybe not that last one -- but it was 1963, before either equal rights or public awareness regarding endangered species.) 

The 2008 Christmas Book is as creative as its predecessors, with the opportunity to immortalize the couple of your choice as life-sized LEGO sculptures in collaboration with artist Nathan Sawaya. 

Attorneys for Neiman Marcus obviously took a crack at The Book before it landed in lucky mailboxes around the globe, however.  The item description includes the following caveat regarding your would-be blockheads:  "Just make sure you have the rights to their likenesses; we're not here to judge."  In addition to concerns about rights of publicity, the fine print notes, "LEGO and the brick configurations are trademarks of the LEGO Group.  The Life-Size Replicas are not affiliated with or endorsed by the LEGO Group."  Fair enough, given previous LEGO controversy. 

With the legal details out of the way, all you need now is USD $60,000 per sculpture plus shipping -- and a full-time nanny to make sure that Junior doesn't dismantle the artwork during playtime.  On the other hand, the reconfigurable nature of the sculptures could come in handy in the case of a post-holiday breakup.

Posted by Susan Scafidi to Fashion/Art at December 01, 2008 | Permalink

Finger puppet-maker extraordinaire Mullish Muse has designed handfuls upon handfuls of characters, from holiday standards to Presidential candidates.  While these clever creations are appealing stocking stuffers, the fashion designer series, thus far consisting of Karl Lagerfelt (below), John Gallaineano, and Vivienne Westwool, and the rock star series may give rise to legal finger-pointing. 

Like other celebrities who invest in and profit from their images, fashion designers may enjoy rights of publicity under state law and in various non-U.S. jurisdictions.  True, some might appreciate being immortalized in felt and sold on Etsy, but others might not -- and Karl Lagerfeld in particular is quite protective of his image.

So while Ms. Muse carefully referred to the puppet's attire as an "Italian-style suit," avoiding a false designation of origin, and to the designer's "trademark ponytail" (not literally, but colloquially -- it's a signature style), the long arm of the law may ultimately stay her hand. 

Posted by Susan Scafidi to Designs & Designers at November 25, 2008 | Permalink

In difficult economic times, some shoppers eschew luxury labels, while others turn to fakes.  Still others avoid conspicuous consumption altogether, whether the logos are real or just look that way.  But a few determined materialists may choose to indulge their every desire -- with the help of a five-finger discount. 

Shoplifters at Staten Island Mall, however, may find themselves featured in an unexpected photo layout.  15-second ads on mall's electronic bulletin boards display mug shots of past shoplifters, and more faces may be added in the case of future arrests and convictions. 

A clever use of shame to deter crime -- unless delinquent attention-seekers find the idea of being part of the rogues' gallery too appealing to resist.  In which case the mall will have to find other ways of humiliating thieves. 

Counterfeit Chic suggests forcing offenders to wear elf costumes and assist Santa -- though admittedly such a sanction may be both cruel and unusual. 

Posted by Susan Scafidi to Busted! at November 25, 2008 | Permalink

Fashion is an omnivorous medium.  There's no aesthetic, subculture, or human experience that is too obscure, too violent, or too dark to serve as an inspiration for some creative designer.  Given this hunger, not to mention fashion's fascination with the color black, it's no surprise that goth culture is reflected in many couture creations.

An extraordinary exhibit at the Museum at F.I.T., Gothic: Dark Glamour, explores the roots of the modern goth aesthetic in Victorian mourning costume, as well as linguistic links back to the Dark Ages and to the ancient "barbarian" Goths themselves.  From Alexander McQueen's skulls to Rodarte's "bloodstained" tulle to Yohji Yamamoto's sculptural folds, many modern designers have experimented with this visual vocabulary.

While designer Rick Owens recalls his own goth youth, which gives his work an air of authenticity, only a few of the creators and wearers of elaborate goth-inspired clothing have any actual association with modern goth culture.  This creative cultural appropriation didn't seem to bother the actual goth partygoers at the exhibit's opening earlier this fall, though.  On the contrary, most seemed to enjoy both the exhibit and the attention from professional photographers and fellow guests who admired their dark finery. 

The animated goth denizens of South Park, however, are less sanguine about seeing their style copied.  Check out the full episode -- or just a short clip -- to see how the clique that laid claim to morbid posturing responds to the new "vamps" in town.

Posted by Susan Scafidi to Culture of the Copy at November 23, 2008 | Permalink

When three subway muggers snatched Marie Conde's fake Gucci bag, she not only gave chase -- she grabbed one of them by the arm and held on long enough for the cops to arrive.  Of course, it wasn't the bag or even the money that Marie was concerned about, but her green card and other documents.

Still, if she's going to take such a courageous and dramatic risk, it ought to involve better than a counterfeit.  Or at least PR maven Kelly Cutrone thought so, and then made sure that Marie ended up with not one but two Longchamp bags, two sets of Alex and Ani "Spiritual Armor" bangles, and other luxury rewards. 

Gucci, are you listening?

Posted by Susan Scafidi to Busted! at November 20, 2008 | Permalink

Who needs skin, skateboards, or automobile bumpers when you can express your identity -- or your brand obsession -- by decorating your laptop?  From stickers on the outside to onscreen wallpaper, the possibilities are endless.

Just to make the process easier, inju has invited you to "Pimp Your Mac!" with a series of desktop designs (6 Louis Vuitton and 1 Gucci) posted on Flickr.  And yes, PCs, this paradoxical combination of individuality and corporate conformity --along with its accompanying trademark and copyright violations -- works on any screen. 

In an amusing bit of intellectual property irony, inju has distributed these images under a Creative Commons license.

Posted by Susan Scafidi to Culture of the Copy at November 17, 2008 | Permalink

A woman should mix fake and real.  To ask a woman to wear real jewelry only is like asking her to cover herself with real flowers instead of flowery silk prints.

--Gabrielle "Coco" Chanel

Why is it that copying a jewelry design or a floral print fabric may give rise to liability under U.S. law, while creating a representation of a natural gem or flower is likely to cause neither legal nor ethical concerns?  Why is it OK to curl a zipper to resemble a rose, but potentially problematic to curl a zipper to resemble another designer's zipper rose?  Why would Coco Chanel (and the modern fashion house that still bears her name) celebrate fake pearls but not counterfeit logos? 

The reasons for intellectual property protection are complex and sometimes controversial, but such protection does not extend beyond human creations.  God, Mother Nature, or whatever atomic collision created the beauty of the natural world is not, legally speaking, an author or inventor.  Even when a talented horticulturalist breeds a new variety of rose, and is duly recognized by the legal system, the scope of the patent does not extend to an artificial fabric representation of that partnership between plant and human animal, nor should it.

If all beauty arguably originates in nature, from the "fearful symmetry" of both Blake's tiger and his verse to the curves of the Venus de Milo to the fractal patterns in Jackson Pollock's splatter paintings, then all creators are to some extent copyists.  That doesn't mean that there's literally "nothing new under the sun," in the frequently decontextualized phrase from Ecclesiastes.  Nor does it undermine the legal system's reflection of our desire to encourage and/or recognize human creativity.  But it is a worthwhile reminder -- like Magritte's juxtaposition of a floral arrangement and the landscape behind it in "Le Plagiat" -- that art imitates life.  (And vice versa for Oscar Wilde fans, but that's a meditation for another day.)

Le Plagiat (The Plagiary), 1940

Thanks to the fabulous Ariana Lindermayer for sending the inspirational image!

Posted by Susan Scafidi to Culture of the Copy at November 11, 2008 | Permalink

Counterfeit Chic does not recommend using artificial scents to cover unpleasant odors.  Perfume is alluring, but no substitute for a shower.  A spritz of Febreze does not confer a dispensation from taking out the garbage.  And if you feel the need to hang one of those tree-shaped air fresheners from the rear-view mirror, it's time to throw out the fast-food wrappers littering the back seat and clean the upholstery. 

Still, those Little Trees® have their fans -- including, it seems, some lurking in the forest of fashion.  Hence the full-page ad that appeared in today's WWD, admonishing against using the familiar design without permission.

It turns out that in the past year, the trademarked design has been the subject of lawsuits against both Old Navy and Rocawear, which incorporated the trees into (presumably unscented) T-shirts.  Given that the trademark holder also markets its own line of tree-bedecked clothing, the fashion labels couldn't quite mask the telltale aroma of infringement. 

Related posts:  Admonitory ads from Chanel and Joseph Abboud.  

Posted by Susan Scafidi to Couture in Court at November 06, 2008 | Permalink

Posted by Susan Scafidi to Historical Moments at November 04, 2008 | Permalink

Did paparazzi catch Karl Lagerfeld coveting counterfeits?

As of yesterday, Jezebel.com seemed to think so -- but the entry is no longer searchable on either the blog or its original source, INF.  Did Lagerfeld's lawyers get involved, perhaps with allegations of defamation?  We can only speculate.  It's worth noting, however, that no identifiable counterfeits (Chanel or otherwise) appear in the suddenly scarce photo. 

Posted by Susan Scafidi to Photo Ops at November 04, 2008 | Permalink

Strangers on the street often ask me questions.  And not just at home -- I've been asked for directions in Paris, my opinion of a restaurant in Rome, and the time in New Delhi.  I do my best to respond, language and jet lag permitting, but most of the time the question would be better answered by a local. 

My instinctive trust in local knowledge was unintentionally confirmed by a recent feature in the New York Times, which asked tourists to recommend their favorite bites of the Big Apple.  At least the reporter had the wisdom (or perhaps the legal good sense) to be skeptical of some of the advice:

The recommendation by Mr. Fox’s wife, Barbara, was a bit dicier than the restaurant pick. Her favorite activity was buying knock-off purses in backrooms of Canal Street stores. (Weekend in New York does not endorse such activity but did not want to restrict her freedom of speech, so will note that she got a $3,400 Louis Vuitton purse (or something like one) for $80.)

Of course, freedom of speech does not guarantee Ms. Fox the right to speak in the pages of the Times, or indeed to advocate illegal activity at all.  But her response does raise another question:  The next time a tourist asks me how to get to Canal Street, should I graciously point her in the wrong direction?

Posted by Susan Scafidi to at November 04, 2008 | Permalink

Your scary Halloween costume checklist:

• Beehive hairdo
• Rimless glasses
• Lipstick (wouldn't want to be mistaken for a ... oh, never mind)
  
• Designer business suit (red, black, white or combination thereof)
• Pumps (see first two color choices above)
• Counterfeit accessory (optional)

Eric Wilson at the New York Times started the Sarah Palin knockoff watch with his observation last week that she had arrived at the Alaska governor's mansion the first time wearing "what appeared to be a knockoff Burberry scarf."  Now her youngest daughter has been photographed carrying (Mommy's?) Louis Vuitton bag, also alleged to be fake. 

Even if the luxury bag turns out to be genuine -- perhaps part of that $150K shopping spree -- it doesn't exactly scream all-American hockey mom. 

And if the scarf and bag are indeed counterfeit, Sarah may have to face a few questions about the source of the illegal merchandise and her take on fakes.  Not to mention their association with child labor, organized crime, and, yes, in some cases even funding for terrorism.  (Perhaps you've received some of the spam suggesting that Obama is a Muslim, associates with terrorists, or both.  Imagine what those guys would be writing if one of his daughters instead of one of Sarah's had been spotted with a counterfeit handbag.  Talk about scary.)

Now, back to that brain-eating zombie costume...

Thanks to my fabulous Fordham law student Andrew Wolinsky for the tip!

Posted by Susan Scafidi to Busted! at October 31, 2008 | Permalink

Juicy Couture is the only direct brand in Liz Claiborne's painfully culled herd that actually recorded an increase in same-store sales during the third quarter.  But what exactly is driving that increase?  From the sound of things, it may not be creativity -- unless you count creative pilfering.

Suspicions were raised with the accusation that Juicy had infringed Alex & Ani's patented bangle design.  At a substantially higher price.

Then New York Times "Critical Shopper" Cintra Wilson paid a visit to a Juicy boutique.  From half a block away, she noted that "Juicy's window dressers have been worshiping at the altar of Simon Doonan, the creative director at Barneys New York."  Inside the store, the brand's imitative strategy became even more apparent, with designs resembling those of "Tory Burch, whose influence is felt here nearly to the point of plagiarism." 

And now clever Counterfeit Chic reader Amanda K wonders whether anyone else has noticed the similarity between Coldplay's new album cover and several Juicy Couture products.  As she puts it, "I love Juicy, and I love Coldplay, but this is a little weird." 

Or maybe not so weird, if the overall "shutdown in discretionary spending" at Liz is code for eliminating expenditures on actual design. 

Posted by Susan Scafidi to Designs & Designers at October 30, 2008 | Permalink

Need a way to brighten up a rainy afternoon at your desk?  Check out Erowid's "99 Ecstasy Tablets" (2007) below -- and then set a timer for 60 seconds and click the image to visit the larger original. How many logos can you identify in a minute?  And what do those particular brands say about your consumer identity?  Look closely -- some of Counterfeit Chic's favorite marks are a bit faint.

Warning:  Trademark holders are likely to be less than ecstatic about this particular artistic medium. 

Via BuzzFeed.  

Posted by Susan Scafidi to Fashion/Art at October 28, 2008 | Permalink

When Politico revealed yesterday that the Republican National Committee had spent $150K at Saks and Neiman Marcus to dress Sarah Palin for the campaign trail, your favorite law prof's telephone lines lit up. 

Was it legal?  Yes.  Campaign finance laws prohibit the conversion to personal use of contributions accepted by a candidate, specifically including clothing (2 U.S.C. 439(a)) -- but this was RNC money, not funds from the McCain campaign.  Nice loophole.  Even if the bills had been paid with a candidate's contributions, the campaign could still have argued that this particular clothing was not "an expense that would exist irrespective of the candidate's election campaign," so long as Sarah wore the clothes for campaigning only.  When a spokesperson stated that the intent all along had been to donate the clothes to a charity after the campaign, the idea may have been to establish this argument.  And contrary to some suggestions, if the RNC retains ownership of the clothes and merely lets Sarah use them during the campaign, she shouldn't have to pay income tax on the $150K. 

Was it politically savvy?  Are you kidding? Mrs. Joe Six-Pack doesn't drop $150K at a time at luxury retailers.  Especially not in the middle of an economic meltdown.  Of course, we're a visual culture, and political theatre requires makeup, props, lighting -- and yes, costumes.  For Sarah to be on the road and photographed every day for a couple of months, the wardrobe augmentation was strategic and perhaps necessary.  But for a political candidate billing herself as a hockey mom and trying to overcome a reputation as attractive but uninformed, going the luxury route was a PR disaster.

For more on my conversations yesterday, check out the following:

• Olivia Barker at U.S.A. Today
• Frank James at the Chicago Tribune online (my favorite comment -- and, yes, fashion law now exists!)
  
• Robin Abcarian and Kate Linthicum at the L.A. Times
• Jennifer Garske at AP Radio

Posted by Susan Scafidi to Fashion Police at October 23, 2008 | Permalink

When Counterfeit Chic learned that Mrs. O, a website dedicated to following Michelle Obama's fashionable choices, had mistaken an H&M dress for a Narciso Rodriguez, the fashion world stopped turning for a moment.  Had the sartorially sophisticated future First Lady turned to knockoffs in an attempt to win over everywoman on the campaign trail?  And knockoffs of Narciso, no less, which are quite common in more than one sense of the word?

Happily, the alleged Narciso is not in fact a copy -- unless you assume that the use of horizontal stripes and a sleeveless silhouette is proprietary.  Take a look at the Michelle in the real Narciso (left) and in the H&M (right).  The Narciso has an empire waist (more easily visible here) rather than a natural one, a solid rather than striped top, no belt, an exposed zipper in the back, a deeper and more subtly curved neckline, and a completely different color scheme. 

Perhaps the Mrs. O site rushed to judgment on the mistaken assumption that Michelle had chosen Narciso again, rather than making a fast-fashion selection that might be a bit more politically palatable during the current credit crunch.  (Note to Michelle:  Creative designers like Narciso have to pay their bills, too -- Seventh Avenue needs you!)  No offense to the editor, of course -- the camera often can't capture quality, construction, and all the design details that would make an H&M dress hard to mistake for Narciso if examined in person. 

That being said, it can be easy for even a well-intentioned shopper to select a knockoff when looking for a bargain .  Without an encyclopedic knowledge of fashion, it's hard for a layperson to be sure whether that budget-priced beauty is a copy of an unknown designer original.  In this case, however, Michelle is in the clear -- and living proof that some women can make even an inexpensive dress look simply smashing. 

Thanks to my smart and stylish research assistant Ariana Lindermayer for the tip!

Posted by Susan Scafidi to Designs & Designers at October 22, 2008 | Permalink

The Mongols have a constitution and bylaws, wear matching insignia, and earn the equivalent of merit badges -- albeit for things like committing violent crimes or engaging in certain sex acts.  They've even registered their name as a service mark.  But the members of the notorious motorcycle gang are no Boy Scouts, and federal law enforcement officials have taken a novel approach to intellectual property law in an attempt to shut down the organization. 

In addition to a massive early morning raid that resulted in dozens of arrests, the L.A. Times reports on this more subtle approach:

U.S. Attorney Thomas P. O'Brien said if his plan is successful, the government would take over ownership of the trademark, and anyone caught wearing a Mongols patch could have it seized by law enforcement on the spot.

"Not only are we going after the Mongols' motorcycles, we're going after their very identity," O'Brien said in a telephone interview early this morning.

In an article from the Associated Press, O'Brien added, "It would allow law enforcement to seize the leather jackets right off their back."

Of course, the prosecutor could simply have attempted to strike at the group's legitimacy by canceling the mark, perhaps arguing that it consists of "immoral, deceptive, or scandalous matter" or is "primarily geographically misdescriptive," since the gang operates out of southern California, not Asia.  Cancellation, however, would allow the Mongols -- and anyone else who chose to do so -- to continue using the mark, though not exclusively.  Federal ownership would instead ensure that nobody outside the government could legally reproduce or use the mark in connection with the group's activities.

And after all, men who are allegedly willing to sell drugs, commit murder, and copulate with corpses will surely hesitate to engage in intellectual property infringement.   

Thanks to fabulous Fordham Law alum Suzana Carlos for the tip!

Posted by Susan Scafidi to Busted! at October 21, 2008 | Permalink

With graphs of the stock market looking as uneven as a 1920s handkerchief hemline, fashion industry insiders are wondering what is in store for the upcoming season.  Your favorite law prof recently chatted with WWD's Liza Casabona about anti-counterfeiting activity and the PRO-IP Act and with Adrianne Pasquarelli of Crain's New York Business about the effects of tighter credit.  The connection?  Whether the issue is copies or credit, more strategic decison-making is in order. 

Thanks to Liza (and co-author Kristi Ellis) and Adrianne for the quotes!  

Posted by Susan Scafidi to Legislation & Lobbying at October 20, 2008 | Permalink

With the most interesting election season in years drawing to a close, many have taken to wearing their votes on their sleeves -- or their lapels, hats, and T-shirts.  All of these actions are constitutionally protected free speech.  Except, it would seem, inside certain states' polling places. 

Virginia has just joined a number of other states in prohibiting voters from wearing to the polls any items of apparel that advocate for or against a particular candidate or issue.  Those who do so will presumably be asked to remove or cover the offending items before being permitted to vote.  

While the goal of avoiding intimidation or coercion of fellow voters is an important one, surely these laws go too far.  Political speech is at the core of the rights of expression that are so vital to a functioning democracy, and clothing is a key medium of personal expression (more on this point in a forthcoming article).  Poll workers, police, and others acting in an official capacity sh