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October 31, 2007

Ire d'Ivoire

From the continuing annals of faux ethics comes an email from "Kim" -- no further signature provided -- objecting to Counterfeit Chic's notes on Jessica Kagan Cushman's clever scrimshaw bracelets, Chanel's alleged copies, and Forever 21's reported copies of the copies

Jessica Kagan Cushman's resin scrimshaw reproductions

Kim, who is either a real person or a PETA spambot, writes:

...It sickens me that anyone would buy her Mammoth Tusk bracelets!  Those tusks belong on the animals they came from not on some debutante's arm walking down fith [sic] avenue.  Shame on you!

Quite apart from the image of an arm walking down 5th Avenue, Kim's concern for Jessica's "victims" is extremely amusing.  Jessica's website notes that "mammoth ivory comes from animals that died of natural causes over 10,000 years ago and are now extinct."  In other words, they don't really need their tusks at the moment -- and the ban on international trade in elephant ivory does not apply.  (Interestingly, while outlawing trade in elephant ivory has successfully restored elephant populations, wildlife refuges have found themselves guarding stores of the forbidden ivory.  A recent decision allowed a one-time sale by several African nations, with profits earmarked for future conservation efforts.) 

There are, of course, somewhat more savvy animal rights activists who object to re-use of animal products (e.g. recycled furs) or imitation products (e.g. pleather) because, it is argued, they may stimulate demand for the real thing.  Kim, however, actually expresses a preference for the alleged copies of Jessica's bracelets, and thus is not a purist with respect to animal-like products.  She might even like Jessica's new, lower-priced resin reproduction line.  And Messrs. Dolce & Gabbana, the reigning princes of leopard print, can rest easy. 

Principles are generally admirable -- on principle -- even if one disagrees with them.  Ill-informed  ranting, however, is an easy target for ridicule.  With friends like Kim, elephants don't need enemies. 

October 30, 2007

Matter v. Antimatter

What happens when a real designer meets a fake handbag? 

Kate Spade presumably spent years stepping over and around (and perhaps even on) counterfeits of her work on the sidewalk outside her Soho boutique.  When she saw a phony fan carrying a replica of a new style, however, she crossed the street to investigate further.  The guilty party -- who recognized Kate immediately -- claimed that her husband had purchased the bag.  But Kate is still feeling the hate, according to New York magazine.  "Anytime you ask someone, they say that," she muttered. "'I don't know, it was a gift.'"

Real Kate Spade label

Fake Kate Spade label

It may take a designer to spot a fake a 20 paces, but Kat at IHateCounterfeitBags.info has made it her mission to keep the rest of us from being fooled.  Compare a real Kate Spade label (top, note the spacing between letters) with a counterfeit (bottom), and then head over to Kat's website for more on the finer points of fakery.

And should you find yourself having made a faux pas, watch out -- Kate's approach is a bit more stern than Jack's

Inimitable Intricacy

Last month, Counterfeit Chic noted that -- in the absence of U.S. legal protections -- some designers manage to evade mass copyists by creating looks that are too difficult or too expensive to imitate. 

Now Cheryl Lu-Lien Tan at the Wall Street Journal reports that the technique has become a trend, with this season's creative tailoring and luxurious fabrics posing a challenge to would-be knockoff artists.  Deliberate diversion or bonus by-product?  Apparently there's stylish strategy at work:

Graeme Black, who recently stepped down as chief designer of womenswear at Ferragamo to focus on an eponymous line, says part of his goal in creating cocoon-shaped coats and jackets with draped collars and puffy sleeves for both labels was to set them apart from mass-market styles.

How do these differences translate to actual garments?  The WSJ asked an expert, who noted that while this season's celebrated leg-o'-mutton sleeve at Lanvin (left) relies on quality fabric and careful stitching to maintain volume and symmetry, the loosely woven fabric and pintucks on a similarly shaped sleeve from H&M (right) result in a limp look. 

In other words, sometimes you get what you pay for.

P.S.  Thanks to Chris Hoofnagle -- who has a very long memory for scholarly interests -- for the tip! 

October 28, 2007

Um, Thanks?

From Overheard in the Office:

Make-up counter girl: ... And can I interest you in our free gift?
Customer: Sure! What is it?
Make-up girl: It's a real faux leather bag!

Department store, 34th Street
New York, New York

Hmmm.  Would this be the same department store on 34th Street that once boasted the real Santa as an employee?  What an extraordinary tradition of retail alchemy. 

 

October 26, 2007

Unsportsmanlike conduct

Lou Piniella kicking itThe World Series is upon us, and in a week or so the winner will be reward not just with a trophy, but millions of dollars in proceeds from the sale of championship merchandise.

However, that's only half the story.  Every year teams in contention for the playoffs and the World Series prepare thousands of shirts, hats and other items in anticipation of victories that never occur.   

Major League Baseball used to require the losers to destroy these erroneous goods.  This year, though, the League has announced that it will expand its charitable giving alliance with World Vision by clothing the needy in unsalable merch branded with the names of losing teams. 

Whether it's cruel or kind to deny Cubs fans the chance to buy 2007 National League championship t-shirts is a question we'll leave to sports radio.   However, there's also an important legal issue raised by this charitable endeavor, and it flows from the word "expand."

You see, before Major League Baseball decided to give away its unsalable authentic goods, it had a long-established policy of sending seized counterfeits abroad.

World Vision and the U.S. government have both praised the Major League's largesse, particularly for its efforts in Africa.  But is this something that African governments truly want?  Ghana, Uganda, South Africa, Tanzania and other African countries have been making headlines with their efforts to curb the importation of pirated goods.  Nonetheless, even as these countries are rewriting their laws and boosting their customs budgets, World Vision and other well-intentioned souls have been flooding the continent with counterfeits impounded in the West. 

If companies expect African governments to make headway in the fight to stop the flood of imported fakes, perhaps the time has come to do with counterfeits the same thing that baseball umpires do with unruly managers--

Throw them out

October 24, 2007

ACTA Up!

The World Intellectual Property Organization is in a furor over a scandal involving Director General Kamil Idris' alleged misrepresentation of his age in official documents and subsequent calls for him to step down.

The World Trade Organization is stuck in the Doha round of trade negotiations.  Still. 

But that hasn't kept a group of major global trading partners, including the US, the EU, Canada, Japan, Korea, Mexico, New Zealand, and Switzerland, from announcing plans to create an Anti-Counterfeiting Trade Agreement.  ACTA will focus on three areas:  1) international cooperation, (2) enforcement practices, and (3) a strong legal framework for IP enforcement. 

Reading between the lines?  Call it the Anti-China Trade Alliance.

For more information and commentary, here are the US press release, the EU press release, a skeptical opponent, and a pessimistic sympathizer.   

October 22, 2007

Watch Out!

Pssst!  Want to buy a watch?

According to an article by Liza Casabona in this month's WWD Accessories supplement (not available online), seizures of counterfeit watches are on the rise.  So far this year, watches and watch parts account for 10 percent of the goods seized by U.S. customs, following only apparel and footwear, and up from 2 percent for fiscal 2006.  And that's not including online sales of "replica watches," or the legally more complex issue of jewelers altering less expensive versions of genuine watches to look like their pricier counterparts by, for example, adding diamonds.  (Thus far, the brands are winning their trademark infringement cases, based on the argument that the modified watches are misrepresented as original workmanship and do not carry disclaimers.) 

Perhaps counterfeit retailers have finally decided to target all the guys hanging around on Canal Street while their female friends are buying fake handbags.

And yes, those quotes are from your favorite law prof -- thanks, Liza! 

P.S.  Doubt the trend?  There's even a website that reviews replica watches:

October 21, 2007

One, Two, Three, Many

When I was very little, my mother periodically drove by a McDonald's that, under its golden arches, proudly proclaimed, "Over X Million Served."  Every so often, the figure would rise.  I never actually saw anyone on a tall ladder changing the numbers, but the statistic was a source of fascination nonetheless.  How many zeros in a million?  Was that only hamburgers, or cheeseburgers too?  What would they look like piled up?  Did the number include that franchise only, or the whole chain?  If we went in and ordered a lot of hamburgers, could we get the numbers to change?  And how did McDonald's keep track? 

At some point, the millions became billions, and then the sign changed.  It read simply, "Billions and Billions Served."  I stopped paying attention.

Fabulous photo of a cultural phenomenon

Source:  Elena777 on Flickr

Industries fighting counterfeiting clearly understand the power of large numbers.  The problem is that illegal goods are somewhat harder to track than McDonald's hamburgers.  Do counterfeit sales add up to $600 billion per year, or is the number closer to $200 billion (exclusive of domestic manufactures and downloads)?  Last year Felix Salmon, who also writes for Conde Nast Portfolio, made an effort to track the source of the most widely quoted counterfeit figures.  His conclusion?  "All counterfeiting statistics are bullshit."  On Friday the Wall Street Journal's Numbers Guy, Carl Bialik, raised similar questions about piracy's "fuzzy figures" and the difficulties inherent in generating hard numbers. 

Nobody seems to deny that there is massive global trade in counterfeit goods.  Nor is there any question that back alley sales represent lost tax revenues, in addition to other complaints.  Quantifying the fake trade, however, is an elusive task. 

Why, then, the insistence upon numbers?  Perhaps it's just because journalists and lawmakers always ask for them.  Of course, from an efficiency standpoint, it make sense to understand the scope of the problem before committing resources to legal enforcement.  But more importantly, advertisers have known for year that numbers are both attractive and persuasive.  Just ask Mr. Heinz and his 57 Varieties

So, how big is the counterfeit trade?  Let's just say, billions and billions sold. 

October 19, 2007

Hail to the Chief

Last month I had an online conversation with Felix Salmon of Conde Nast Portfolio about why the New Yorker column on design piracy was essentially an economic fiction.  (Remember the bad joke about the physicist, the chemist, and the economist stuck on a desert island?  "....and the economist says, 'Assume we have a can opener'"?  The column bore approximately the same relationship to reality.)

Now the New Yorker has published CFDA President Diane von Furstenberg's letter in response to the column.  Madam President, you have the floor:

New Yorker 10-22-07

October 17, 2007

Champagne Wishes

Champagne has long resented "champagne."  To denizens of the French wine region that is home to the world's favorite bubbly beverage (Coca-Cola aside), only the local product should be called by name, and the rest is merely sparkling wine.  Most of the world agrees -- and Article 23 of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) makes it official.

Why, then, are so many American bottles labeled "champagne"?  While protection of geographical indications for wine and spirits is stronger than for any other product category, there's a loophole.  Article 24 provides that WTO member countries, like the U.S., can choose to allow domestic wine producers who "borrowed" someone else's regional label prior to the signing of TRIPS to continue to do so.  The U.S. has elected to take advantage of that exception.

While Champagne, France, has lost the legal battle -- for now -- it's waging a PR war instead.  Here's a portion of a recent ad from the Office of Champagne, USA:

The fine print in the rest of the ad goes on to invite oenophiles to sign a petition -- already joined by 13 wine regions including the Napa Valley -- seeking truth in labeling. 

But is there really a difference between French Champagne and American "champagne"?  Whenever I've taught International Intellectual Property Law, I've conducted a blind tasting among my students (including once on a "dry" campus -- but that's another story).  While a very slim majority of students has been able to identify the real thing, for the most part the class admits to guessing.  Interestingly, my international students seem to have a far easier time telling the difference -- which may bolster Champagne's argument.  In any case, I'm sure they'd be happy to volunteer for further testing.

Which brings me back to that petition.  If the writers of the "Joint Declaration to Protect Wine Place and Origin" want to boost the number of signatories fast, they might consider free samples....

October 16, 2007

Fiddling while Rome Burns

Sacred image or flaming fake?  When Gregorz Lukasik photographed a bonfire lit during a Polish service on the second anniversary of Pope John Paul II's death, he didn't expect to capture an image of the late pontiff himself.  Nevertheless, Lukasik's local bishop apparently believes that the firey silhouette is more than a coincidence, noting that JP II made many pilgrimages during his life -- and may still be at it. 

But should the faithful rush to download this image as a holy screensaver?  Ultimately, that's up to officials with higher authority -- and more facility in detecting telltale traces of Photoshop manipulation -- than Counterfeit Chic.  Even if the photo is unaltered, however, the human mind's tendency to pareidolia warrants caution.  One may not wish to nonchalantly eat a tortilla in which Jesus' face has appeared or accidentally burn a grilled cheese sandwich consecrated with an image of the Virgin Mary, but neither is every suggestive cloud formation a sign from above.

If the photo is real, does Lukasik stand to gain more tangible benefits than a blessing and 15 minutes of fame?  Well, 500 years ago there was a brisk business in alleged splinters of the True Cross and other holy relics -- and in 2004 that grilled cheese sandwich sold for USD $28,000 on eBay. 

While modern canon law absolutely forbids the sale of relics, a recent image probably wouldn't fall under the prohibition -- although c.1190, section 3 also places restrictions on the transfer of "images which are honored in some church with great reverence by the people."  The rule is limited, but commentary commissioned by the Canon Law Society of America further notes, "Authorities should be watchful lest relics or sacred images fall into the hands of those who do not appreciate them or who might even ridicule them." 

Point taken.  No ridicule here.  But if the photo really does depict a postmortem visit from JP II, why exactly is he burning? 

October 15, 2007

Knockoff News 71

A weekly (or thereabouts) collection of news about counterfeits, fakes, knockoffs, replicas, imitations, and the culture of copying in general around the globe:

And finally, while some counterfeit busts involve months of investigation and the unraveling of complex digital networks of international intrigue, others are just dumb luck:

October 14, 2007

Channel Surfing

Poor Gabrielle.  She was literally born misspelled -- as "Chasnel" rather than "Chanel," in a hospice for the poor.  Apparently neither her mother nor the illiterate staff could spell her father's name, so the mayor took his best shot.  Over a century later, people are still struggling with her name...

Chanel

...which is as good a reason as any for just using "Coco." 

Having lost one of the Fs in "Scaffidi" to an immigration error a couple of generations ago, I have to commend Mlle. Chanel for sticking to an accurate spelling, whatever the proper authorities might have thought.  From now on, I think I'll write "return to sender" on junk mail addressed to Scafaldi, Seafidi, Scafadi, Scafade....

And while I'm working through the stack on my desk, check out the Asian Garden Mall set from Sullyt64 for t-shirts from fellow orthographic victims "Versage" and "DNKY." 

October 13, 2007

Puckish Portrait

Sean Avery is a hockey player whose dream job is running a fashion magazine.  Judging from the appropriation artwork gracing his walls in tomorrow's New York Times Magazine portrait, however, he won't be landing many ad pages from Chanel.

The piece is signed "Ermanksi," presumably Brian Ermanksi, a.k.a. the Prince of Elizabeth.  The street artist and vintage resaler seems to have a particular resonance with Chanel, since his painted room in the San Francisco Hotel des Arts also includes "a quick spray-can rendition of a Chanel #5 bottle."  He's certainly piled on the details in this work -- in addition to the giant logo and quilted background, he's dressed his blue-haired model in pearls, a pendant with the number 5, and signature cap-toe pumps. 

Then again, the double C's may simply be the modern outlaw artist's corporate icon of choice -- not necessarily a bad thing for a venerable fashion house seeking to stay relevant, even if it sets some trademark lawyers' antennae quivering.

P.S.  Staying in the Hotel des Arts is a most interesting experience, even if waking up inside a contemporary art installation can be a bit disorienting -- definitely worth a look.   

October 11, 2007

Babes in Toyland

Barbie is pushing 50 -- and she's not aging gracefully.  Plagued by reports of falling sales and girls who would rather mutilate their dolls than play with them, Barbie has also felt compelled to pursue legal action against the younger, hotter Bratz girls. 

Now the pneumatic blonde has another competitor -- but this time the doll's legendary curves are decidedly not on display.  Indonesian engineer and businesswoman Sukmawati Suryaman has created the modestly dressed and veiled Salma, advertised as the "Muslim Barbie," as a cultural alternative to the original.  Interestingly, the made-in-China newcomer not only bears a strong physical resemblence to her Western foremother, but she also appears to have followed Barbie's makeup tips. 

Check out the BBC report on Salma...

 

...and then start placing bets on how long it will take Mattel to send a cease & desist letter. 

October 10, 2007

Defendant du Jour

The recently concluded Paris Fashion Week, following on the heels of New York, London, and Milan, is the lens through which next season's trends are refracted.  So, what will it be for Spring 2008?  Floral prints, transparency, fluid shapes -- and lawsuits against eBay.

Reuters reports that Hermes has now followed Dior, LVMH, and L'Oreal in taking action against the online auction giant, which serves as a sales platform for both legitimate goods and counterfeits.  Many, many, many counterfeits, if the plaintiffs' claims are accurate.  French luxury conglomerate PPR, which owns the Gucci Group, may be next in line to file suit. 

Seasonal weather predictions are for increasing storms in San Jose -- and across the eBay empire. 

October 09, 2007

Stormy Weather

PR companies are delighted when a client's brand is favorably mentioned in a New York Times headline -- except when the headline refers to someone else's product. 

In a letter to the Sunday Styles editor, GustBuster umbrellas' PR rep noted that the September 9 "Pulse" column (no longer available online or even on Lexis) had reported on a rival umbrella by Davek -- under the headline "Gust Busters."  The letter went on to say -- twice -- that the real GustBuster company was upset at the incorrect use of its "copyrighted" name. 

GustBuster umbrella

Allow Counterfeit Chic to correct the correction.

The brand name GustBuster is not copyrighted.  I know this because (a) copyright law does not protect short phrases, and (b) I checked, just to make sure someone in the U.S. Copyright Office hadn't been out in the sun too long. 

What the PR company presumably meant to say is that its client's name is trademarked, which it is.  Twice -- as both a word and a logo including an umbrella and raindrops. 

Of course, confusing copyright with trademark, or patent for that matter, is a quite common error.  In this case, however, there's another moral to the story:  Companies should be cautious when choosing trademarks that indicate the function of their products -- in this case an umbrella that, like its competitor, is designed to resist being turned inside-out by strong gusts of wind. 

As intellectual property lawyers are well aware, potential trademarks can be classified along a sliding scale of distinctiveness as arbitrary or fanciful (terms with no relationship to the branded product), suggestive, descriptive, or generic.  If the name is arbitrary or fanciful -- like "Davek" for umbrellas -- trademark lawyers go to bed happy.  As long as nobody else has registered "Davek" or anything similar, particularly for umbrellas, the trademark is easily registrable and protectable.  If it's generic -- like "Umbrella" for umbrellas -- the mark can't be registered at all.  And if the name is somewhere in between, like "GustBuster," the mark might be registrable -- but it might also leave you writing letters to the New York Times when it is used in conjunction with someone else's goods.

Now, what would you call an umbrella that was not only windproof, but also couldn't be left behind in a taxi?

October 07, 2007

OJ Did It! Simpson Caught Wearing Fake Rolex

For O.J. Simpson, law and fashion are a lucky combination. 

When he was accused of killing ex-wife Nicole Brown Simpson and her friend Ron Goldman in 1994, the criminal jury found him not guilty, despite evidence including a bloody size 12 Bruno Magli footprint and a suspicious pair of Aris Light gloves.  Defense lawyer Johnnie Cochran made headlines with the glove found at the scene of the murders, infamously telling the members of the jury, "If it doesn't fit, you must acquit."  They did. 

O.J. didn't fare so well in a civil trial, in which the Goldman family was awarded USD $33.5 million -- which they have yet to collect.  The tide seemed to be turning for the Goldman family recently, when a California judge ordered OJ to turn over a gold Rolex Submariner watch (among other things) in partial settlement of the judgment.  The value of the watch, which O.J. had been spotted wearing in a photo on TMZ.com, was between $12,000 and $22,000.  Or so the Goldmans thought.

It turns out that the watch was a fake, worth about $125. 

The judge has since ordered the watch returned to O.J.  -- but why not sell the fake anyway?  After all, its celebrity associations are sure to draw interested bidders, and the Goldmans' lawyer has already received a $10,000 offer. 

Unfortunately for the Goldmans, the judgment exempts jewelry worth less than $6,075.  Simpson's lawyer successfully argued that allowing the sale of the watch at a higher price would create a precedent under which the Goldmans could attempt to seize any number of trivial items belonging to O.J. on the theory that they could be sold at a significant markup. 

Not to mention the fact that selling a counterfeit -- even one clearly acknowledged as such and sold as a pop culture artifact rather than as a substitute for a real timepiece -- is a crime.  Of course, O.J. can't sell the watch either, but in the U.S. it's perfectly legal to own a fake. 

At least the case has left us with one new legal rule:  If the watch is fake, you cannot take. 

October 05, 2007

Heart Trouble

Intellectual property is global.  Intellectual property law, however, is national -- which may cause difficulties for New York State, a determined defender of its "I Love NY" U.S. trademark, with respect to this version from Nancy, France:

I HEART NancY

It's a toss-up whether the original trademark owner will be more offended by Nancy's use of the mark or by the fact that the interloper -- like many people -- apparently believes that the slogan refers to New York City rather than the whole state.  At the moment, however, New York definitely does not "heart" Nancy. 

Via AdsoftheWorld.com

October 04, 2007

Sticking It to 'Em

Sheet of counterfeit Lacoste alligatorsKids love stickers.  Geek kids use them to decorate notebooks, slacker kids use them to personalize skateboards, and jock kids add them to football helmets. 

Some adults love stickers, or their embroidered equivalent, too.  Especially since certain add-ons can turn generic, legally imported merchandise into far more lucrative lucrative counterfeit goods. 

WWD's Ross Tucker and Liza Casabona report that with the crackdown on counterfeit goods at U.S. borders, there is an increasing trend among counterfeiters toward bringing in unlabeled knockoffs and adding the fake labels and logos stateside. 

This practice of finishing goods in the U.S. in order to evade anticounterfeiting enforcement activities isn't new.  Even at the point of sale, it's not uncommon to buy an unlabeled fake and have the seller stick on a fake logo afterwards.  I've regularly mentioned this practice as one reason among many that a law against design piracy makes good sense -- why should the government spend time and money on other anticounterfeiting legislation if enforcement can be so easily evaded?  In the absence of laws against copying designs, however, smart counterfeiters are apparently taking ever greater advantage of their ability to import unlabeled goods, manufacture the small and easily hidden labels locally, and bring the two together when the coast is clear. 

Of course, not all counterfeiters are particularly good at this sleight of hand.  Some get caught with stacks of fake labels or rooms full of embroidery machines.  Others simply can't match the label with the product.  Every now and then online auctions include Burberry plaid handbags with Kate Spade labels, for example, or a mixed tangle of Prada and Chanel charms.  My personal favorite is a dead ringer for a black Fendi "B" bag -- with a triangular metal Prada label stuck right in the middle. 

All of which gives a whole new meaning to "sticker shock." 

October 02, 2007

Mascara Madness

While many consumer protection organizations are concerned about the lead content of toys manufactured in China or toothpaste sweetened with antifreeze, Spanish consumer advocates are apparently focused on ... the authenticity of Penelope Cruz's eyelashes

In response, L'Oreal added a disclaimer to TV ads featuring Cruz and her fluttering fakes.  Parody ensued:

 

And what's the legal penalty for such blatant public deception?  Fifty lashes, naturally.

October 01, 2007

Couture in Court 4

For those who prefer briefs to boxers, a periodic collection of fashionable events in the judicial system:

Willie Nelson middle finger t-shirt

Posh-Life Chanel cel phone plates

And finally, have you ever wondered why women's clothing, accessories, and even dry cleaning costs are often more expensive than men's, even for relatively generic, unisex-styled items -- despite the fact that women's apparel includes on average less material?  If so, you might actually enjoy this tariff case.  Yes, the percentages are strangely unequal, but this time it's the men's version that suffers.