"I'm thrilled to hear we're not the only industry being devastated by this," film director Steven Soderbergh told attendees at the 6th annual Harper's Bazaar Anti-Counterfeiting Summit yesterday. 

Apparently for Soderbergh the silver lining in the counterfeit cloud is that more money spent on fake fragrance and handbags, online and off, means less spent on pirated DVDs, particularly of his own movies.  But the director's ultimate assessment of the bottom line when it comes to copying is considerably bleaker, and he called for a shift in cultural norms to preserve incentives to create.  "Art moves forward when people take chances, and people are taking fewer chances." 

The real question, however, remained unanswered:  Will Soderbergh's next movie project take on fakes?  Counterfeit Chic is ready to buy tickets for Traffic 2: The Handbag Wars, or perhaps Ocean's 14, in which George Clooney hatches a plan to steal the ultimate "it" bag.  Then again, maybe there's a reason I'm not a film producer.

For an established designer with a dedicated customer base and well-known trademarks, cheap knockoffs are a nagging problem.  For an emerging designer, cheap knockoffs can be a knockout blow.  And despite Counterfeit Chic's many years of publicizing the issue (both as a law prof actively working with members the industry and Congress, and also as a blogger), U.S. law doesn't offer much respite -- yet. 

In today's WSJ, Christina Binkley offers a brilliant up-close look at small designers who are bearing the brunt of the knockoff economy.  These emerging designers have borne many of the blows that I've seen over and over again -- a successful piece that wasn't reordered by retailers, who bought the knockoff instead; consumers who may not even know they're buying a knockoff; copies that hit the stores before the real thing; stores that complain to original designers about the imitations in the marketplace (as if the designers could do anything about it!). 


Interestingly, the article focuses on 2 examples, a printed scarf by Otrera (original above left, but go to the WSJ for an interactive version) and a Shashi bracelet, that could actually be subject to copyright protection, unlike most clothing designs.  But the point remains:  Emerging designers, who fund their future creativity by selling in the present, can't affort to lose sales to the large, mass-market chains that cherrypick their most successful designs. 

While Christina notes the concern that even the pending Design Piracy Prohibition Act couldn't help emerging designers with few resources, Counterfeit Chic's own longstanding and frequently published opinion is that young and independent designers are exactly the ones who need a bit of legal protection.  (Just a bit, narrowly tailored to fit the problem -- minimalism can make for the best legal style.  But more on that another day, hopefully with reference to yet another new version of the bill, coming sooner (or later) to a legislature governing you.)  Not only can a bit of legal light shine into the dark corners where copyists lurk and change industry practice, but the vast majority of intellectual property cases settle out of court, or indeed without ever filing in court, and thus are relatively inexpensive.

Given that some emerging designers feel left out in the cold when it comes to access to and understanding of law, the launch of the Fashion Law Institute at Fordham isn't a moment too soon.  The WSJ article reminds me that I need to get back to work -- before yet another young designer becomes a large knockoff artist's lunch.   

We did it!

After more than a decade of working to convince legal academia that fashion was a field worthy of study, after finally establishing a law school course in the field, and after hundreds of hours of interaction with industry stakeholders ranging from international icons to emerging designers, Fashion Law has a home:  the Fashion Law Institute at Fordham.

As a result of the support and advice of the CFDA and its president, Diane von Furstenberg, the Fashion Law Institute will be able to offer training to aspiring lawyers, assistance to designers, and a center for research and information exchange to everyone involved in the field, starting in fall 2010.  None of this could have happened without not only DVF but also the CFDA's executive director, Steven Kolb, and his talented associates; Fordham Law School's dean and associate dean, Bill Treanor and Sheila Foster; and many other wonderful people on both the law and fashion sides of the equation.

When I dreamt of the Fashion Law Institute shortly before our announced launch, however, the scene was simple and dramatic.  As I stretched a hand toward the heavens, the clouds parted and a majestic reclining figure in a wrap dress reached down.  Then a voice sounded.  "Fiat fashion law!"  And lo, there was a Fashion Law Institute.  And she saw that it was good fabulous.

I really must stop watching television just before bedtime. 

So what happens after the creation story?  Keep watching the webpage of the Fashion Law Institute (and occasionally this space).  And thanks to WWD's Marc Karimzadeh for a great article! 

Related post:  Fashion Law

They are "such stuff as dreams are made on:"  High-heeled pumps, crafted in fine chocolate, with a telltale flash of red sole. 

Have award-winning chocolatier Jacques Torres and master shoe designer Christian Louboutin teamed up to produce the ultimate eat-it-or-wear-it experience, or has Jacques stolen Christian's immortal sole? For once, Counterfeit Chic doesn't want to know whether these chic chocolate creations are lusciously licensed or craftily copied -- at least until after dessert. 

While Torres last year had a not-so-sweet legal exchange with Hershey's over allegedly stolen "kisses," the two French craftsmen would seem to make a perfect pair.  What could be more decadent than a shoe that melts to fit, unless it's imbibing Torres' signature champagne truffles from one of these chocolate slippers? 

At $39 per painted pump, the chocolate versions aren't exactly made for a shoestring budget, but for designer shoes they're a sweet deal. Let's hope they're not picked up by "lawyers' fingers, who straight dream on fees."

 *Romeo and Juliet, Act 2, Scene 4.

It took an act of Congress, a year and a half, who knows how many taxpayer dollars, and a 41-page report, but the results are finally in:  The U.S. government is clueless.

About the cost of counterfeits, that is.  

(Of course, Counterfeit Chic could have told you that years ago -- and come to think of it, actually did.) 

Among those who concern themselves with all things counterfeit, it's been an open secret for some time:  Despite the massive numbers thrown around, nobody really knows how large the counterfeit trade is in monetary terms, or the extent to which it affects the targeted industries or the national economy as a whole.  The number most frequently thrown around is $200 billion, the amount of money that U.S. businesses allegedly lose to counterfeiting each year.  But when the the U.S. Government Accountability Office tried to trace this number back to its source, it turns out that there is no source.

Perhaps the most remarkable thing about the GAO's report is that the agency doesn't have any plans to actually try and come up with a number.  A big part of the problem is that the whole point of illicit trade is NOT to be detected and counted.  The other major part of the problem is that experts can't agree on a methodology for evaluating the various harms -- and even potential offsetting benefits -- attributable to counterfeit goods.  There's even a certain amount of disagreement as to what those harms and/or benefits are.  

Of course, there are a few statistics thrown in as consolation prizes for disappointed numerophiles.  There are a lot of fakes out there; over the past 6 years, U.S. law enforcement has seized $1.1 billion worth of counterfeit goods.  57% of the goods seized over that period have been apparel, footwear, and handbags.  China and Hong Kong combined have accounted for about 84% of the value of these items.

At the end of the day, however, the GAO not only couldn't put a real number on the fakes' effect, but also concluded that it had been asked to perform an impossible task.  Maybe the agency will have better luck with next season's snipe hunt.


Related post:  One, Two, Three, Many

Opening day at the Cathedral of Baseball 2.0:  Balmy April breezes, Yankee heroes and fans basking in the afterglow of their 27th World Series win, and more diamonds than Ivana and Ivanka combined.  In the context of an event so carefully choreographed that even the weather cooperated, it was refreshing to learn that a pair of pinstriped pranksters had plans of their own.

Each 2009 Yankee, right down to World Series MVP Hideki Matsui wearing the uniform of his new, geographically confused team, was presented with a commemorative ring.  Or so he thought. 

But Derek Jeter had switched Hideki's for a giveaway fake...and Mariano Rivera had done the same to Nick Swisher.  

Of course, both players eventually received their real rings.  While the authentic Balfour bling is presumably worth a small fortune, however, it's the silly substitutes that showcased more genuine affection and captured a storyline better than any junk jewelry since Audrey Hepburn's Cracker Jack ring in Breakfast at Tiffany's.

With team chemistry like that, can 28 be far behind?
 

Piracy or parody?  We'll never know, now that performance apparel and equipment company The North Face has settled its lawsuit against its comfort gear doppleganger, The South Butt.

St. Louis-area native Jimmy Winkelmann, now a freshman at the University of Missouri Columbia, started The South Butt to help pay for college.  When The North Face's trademark action against Jimmy and retailer Williams Pharmacy followed, Jimmy's attorneys offered a highly original and colorful answer, including at least 7 non-salacious synonyms for "butt" and reproducing the company's "disclaimer":

We are not in any fashion related to nor do we wish to be confused with The North Face Apparel Corp. or its products sold under "The North Face" brand.  If you are unable to discern the difference between a face and a butt, we encourage you to buy North Face products.  

And yes, folks, they still managed to negotiate a settlement.  Terms were not disclosed, but both companies continue to fleece the public -- er, that's sell fleece to the public -- in the form of classic but pricey jackets and other gear.

Thanks to Counterfeit Chic reader and former student Antonia Ponder for a heads-up on the case back in January!

How can you tell whether that guy down at courthouse is a practicing attorney or just someone who wears pinstripes well? 

• Law degree?  Check.
• Bar exam passage?  Check.
• Business cards with a formal title, or at least an "Esq."?  Check.
  
• Client?  Check.
• Case?  Check.
• Current state bar membership?  Oops.

When Gucci's then-in-house counsel Jonathan Moss first noticed that Guess seemed perhaps a bit too admiring of certain famous Gucci trademarks (you saw it here first, folks!), it seemed that he had everything going for him.  A job with a storied fashion house and a juicy brand protection case to pursue -- what more could a lawyer want?

A reminder to reactivate his long-dormant California bar membership, apparently.  It seems that the New York-based Moss had deactivated his only state bar membership some 13 years before filing the case to avoid the annual fee -- and counsel for defendant Guess noticed.  Now Guess is requesting access to internal Gucci communications with respect to the case, arguing that they are not covered by attorney-client privilege because Jonathan wasn't a licensed lawyer at the time they were made. 

Whether or not the Guess gambit works, and whether or not the court ultimately finds that Guess infringed Gucci's trademarks, this case will be remembered for the error that caused a luxury label to turn its inside counsel out.

Counterfeit Chic's sympathy goes out to Jonathan, whom I've met on a number of occasions and whose dedication to defending Gucci's reputation via IP law was readily apparent.  Here's hoping that he'll soon recover from this blow to his own.

And lawyers?  Don't play a Guessing game when it comes to your professional prerequisites. 

First, Tiffany lost to eBay.  Badly.

Then, Tiffany appealed.  And waited.  And waited some more.

Now, the U.S. Court of Appeals for the Second Circuit has affirmed most of the district court's holdings, specifically that eBay is liable for neither direct trademark infringement nor contributory infringement nor dilution with regard to the sales of counterfeit Tiffany silver jewelry through its site.  However, on the issue of whether eBay engaged in false advertising, the Second Circuit has remanded the case to the lower court for additional consideration.  (Opinion here.)

While Tiffany's legal team still has reason to be blue, the new ruling on the false advertising claim may prove to be a silver lining for the storied jeweler.

In essence, the appellate court reasoned that eBay, by advertising Tiffany jewelry on its own site and buying the term "Tiffany" as a sponsored link on search sites, may have misled consumers.  Although there was a battle of experts at trial regarding exactly how much of the Tiffany silver jewelry sold on eBay was counterfeit, with Tiffany claiming some 75% and eBay admitting only to at least 30%, there's no question that a significant chunk of the challenged charms were fake.  Since eBay was aware that so many of the items offered by its sellers were counterfeit, even if it couldn't determine which ones were real and which ones weren't, its creation and purchase of links that directed consumers to "Tiffany" jewelry listings might be considered false advertising. 

This decision follows on the heels of last week's European Court of Justice ruling that, while Google is probably not liable for selling trademarked terms like "Vuitton" as AdWords, those advertisers who buy others' trademarks as sponsored links and use them for questionable purposes like peddling fakes can be found liable.  The Tiffany decision confirms that advertisers in the U.S. can face similar liability for purchasing deliberately misleading links.  It's now up to the district court to determine whether or not eBay's "Tiffany" links actually constituted false advertising, given that they led consumers to both real and fake goods.   

The moral of the story?  Think before you link.
 

What's worse than the fuzzy sheepskin boots that put the Ugg in ugly?
Try knockoff or even counterfeit Uggs.  According to British osteopaths, the cheap copies have still less support than the real thing and are causing wearers' arches to drop and their feet to splay, leading to potential foot, ankle, and hip problems over time. 

Is this warning a few seasons late, stylistically speaking, or are our otherwise fashion-forward friends across the pond still flocking to fleece? 

Either way, it's a tiny bit gratifying to see the haters of high heels and the champions of comfort at all costs caught flat-footed for a change.  Now, pass me my perilous platform pumps, please. 

Louis Vuitton sells handbags, among other things, to anyone who wishes to buy them. 

Google sells the name "Vuitton," among other things, to anyone who wishes to buy it -- and use it to direct internet searches to the buyer's own website via a "sponsored link."  Some of these sponsored links may lead to auctions offering Vuitton products, others may lead to Vuitton competitors, still others may lead to Vuitton product reviews, and many (most troubling to Vuitton) lead to counterfeits.  It's all up to the keyword buyer; Vuitton itself plays no part in the buying and selling of its name as a Google AdWord. 

Today the European Court of Justice, in a much-anticipated decision regarding Vuitton's challenge to Google's sale of trademarked terms as AdWords, found that the practice does NOT constitute trademark infringement -- so long as Google plays only a "neutral" role in the exchange.  (The press release, a bit quicker to read than the decision, is here.)   

According to the ECJ, this means that Google is off the hook if it can show that its storage of data as AdWords is "merely technical, automatic, and passive," indicating that the company lacks knowledge of or control over the particular terms stored by advertisers.  In other words, Google can't deliberately compose an email to potential AdWord clients offering a bargain on the name "Vuitton" but is free to allow buyers to purchase that or any other word as a search term leading to a sponsored link.  If Google actually learns that a specific advertiser is using an AdWord for nefarious purposes, however, Google is required to remove or disable access to the advertiser's link or face liability. 

Advertisers who purchase others' trademarks as keywords, however, don't get off quite so easily.  As in any other unauthorized use of a trademark, if the AdWord buyer arranges for Google to display an ad that confuses the searching public as to the origin of goods or services, the advertiser would be liable for infringement. 

Now that the ECJ's ruling has issued, the case goes back to the French Cour de cassation, which certified the questions to the central body in the first place.  It's a testament to the ECJ's diplomatic skills that both sides are likely to claim victory, although Google is presumably happier with the result than are Vuitton and its fellow litigants, a travel agency and a matchmaking service whose trademarks have also been sold as Google AdWords.  (Lawsuits do make for strange, er, bedfellows.)

Of course, the ECJ's decision is far from the last word on trademarks as search terms.  Just last month a French court found eBay liable for buying misspellings of "Vuitton," often used by counterfeiters, to create links.  Then there's Tiffany's still-pending appeal against eBay in the U.S., which also includes an argument regarding the use of the jeweler's name as a search term.  The list goes on.

And interestingly, my own Google search for "Vuitton" about 5 seconds ago generated not a single sponsored link, so perhaps Google is more cautious -- or more responsive to trademark owners' complaints -- than its litigation posture might suggest.

In a reversal of reports regarding the toxicity of Chinese products from toys to toothpaste, which in recent years caused consumer concern but drew protests from the Chinese government, the province of Zhejiang has impounded European-made clothing that reportedly failed quality and safety tests.

Brands ranging from high-end Hermes, Dolce & Gabbana, Versace and Hugo Boss to fast-fashion Zara and H&M are implicated.  Their countries of original include Italy -- staunch protector of its quality-conscious "Made in Italy" label -- France, Romania, and Turkey. 

According to the government organization that impounded the clothing, tests of 85 batches of imported items showed that only 44% met standards.  Among the concerns were the presence of acid or formaldehyde (which can be used among other things to fix dye or make fabrics waterproof), poor color fastness, and fiber content mislabeling.

Serious safety violations, political posturing over minor malfeasance and mistranslation, or perhaps a bit of both?  Hard to tell. 

But one thing's for sure:  The companies and countries of origin involved will be keeping a keen eye on testing of Chinese-made exports.  And for consumers concerned about safety and accurate labeling, as opposed to price, turnabout testing may be fair play.

 

For centuries, stylish women knew that using deadly nightshade would enhance their natural beauty -- hence the other common name for the plant, belladonna, from the Italian for "beautiful woman." 

Our foremothers also knew that while eyedrops distilled from deadly nightshade dilate the pupils in a manner that they found attractive, the plant is also a dangerous poison.  Ingesting a handful of the toxic berries, or even a single leaf, can kill an adult. 

Fast forward to 2010, when the Toronto midnight bike crew and design collective Deadly Nightshades noticed a certain similarity between its ice-blue satin bomber jackets and two-tone leggings from last spring and fall, respectively (below left), and items currently on sale at American Apparel (below right). The Toronto Street Fashion site quickly joined the cross-border kerfluffle. 

Legally speaking, the Deadly Nightshades garments are very unlikely to have protection under either Canadian or American law, and in general are fairly basic designs.  (Even Chanel did quickly copied two-tone tights a couple of years ago.)  On the other hand, the American Apparel items are suspiciously similar to the Deadly Nighshades styles, from design to color to fabric choice.  And between financial woes, allegations of sexual harassment, immigration issues, and even a lawsuit by Woody Allen, Dov Charney doesn't need any more bad press.

So a word of caution to American Apparel:  Don't ever take Deadly Nightshade(s).  At least from a reputational perspective it can be, well, deadly. 

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.