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December 30, 2007

Knockoff News 75

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, take advantage of the post-holiday sale at your favorite museum shop now -- especially if your taste runs to ankh bracelets and pyramid paperweights.  Egypt's Supreme Council of Antiquities intends to seek royalties on exact copies of ancient objects in order to fund preservation. 

A far more laudable goal than the average pyramid scheme, to be sure.  But if you were worried about the extension of copyright term limits before.... 

Many thanks to Jacob Howley, cultural property aficionado extraordinaire, for the tip!

December 26, 2007

Not-So-Lucky Clover

Van Cleef & Arpels' vintage four-leaf clover design, known as the "Alhambra," has proven lucky for the jewelry giant -- and, until lately, for many others as well.  In October, New York Times reporter Alex Kuczynski wrote a feature on the popular style, noting:

Knockoffs are rampant. A New York socialite I know had her Alhambra necklace made on 47th Street for a quarter of the retail price. Heidi Klum appropriated the clover design for the jewelry she designs for Mouawad, and Web sites such as Overstockjeweler.com offer copies for $180.

Even the usually skeptical writer herself succumbed to the design's allure -- albeit in the form of a cheaper knockoff. 

Van Cleef, however, is not flattered.  In the latest in a series of legal actions against various alleged copyists, the company has sued both Heidi Klum's eponymous company and Mouawad.  (Complaint to follow, along with any eventual answer -- which will presumably claim that the design is generic.) 

Van Cleef & Arpels (left) and Heidi Klum for Mouawad (right)

There may yet be hope for a reconciliation between wealth and beauty, however.  The jewelry company and the supermodel have a common adversary in OverstockJeweler.com -- which has copied them both

Via Blogging Project Runway.

UPDATE:  Here is the complaint.

December 25, 2007

Christmas Shopdropping

Maybe your motto is "shop 'til you drop."  Or maybe, if you're an independent artist, it's "drop 'til they shop."

After Christmas Day, the calm eye of the holiday shopping storm, prepare to re-enter the retail fray -- and keep an eye out for "shopdropped" items that don't quite belong.  Like the tribute to Three Wise Men (Karl Marx, Mikhail Bakunin, and Che Guevara) that appeared unannounced in a California Target store. 

Such faux merchandise occupies questionable legal territory along with appropriated shelf space.  Does it comply with labeling laws and safety regulations?  Does it make unauthorized use of trademarks?  Does it fraudulently imply an association with the store? 

But shopdropping also provides a commodity that no gourmet fruitcake, Santa sweater, or electronic excrescence offers:  food for thought.

Merry Christmas from Counterfeit Chic!

December 23, 2007

Irish Eyes Aren't Smiling

A striped shirt made history last week.

Of course, it wasn't just any striped shirt.  It was a shirt by British designer Karen Millen that, along with 2 other items, became the first article of clothing subject to a decision regarding infringement under the E.U.'s 2002 unregistered design right regulation.  Irish High Court Justice Mary Finlay Geoghegan found that the defendant, Dunnes Stores, had copied the 3 garments and rejected the defense's argument that the KM shirts and sweater lacked "individual character" and failed "to produce on the informed user a different overall impression" from other similar garments.  In reaching her decision, the judge said that the court would take into account the color, texture, and material used in the designs.

Karen Millen-Dunnes Stores shirt comparison 

Despite the significance of the case and the E.U.'s treatment of fashion as equivalent to other objects of design, the press couldn't resist making light of the subject matter or the attorneys arguing over it, including former Irish Justice Minister Michael McDowell for the plaintiff.  An article in the Sunday Independent shortly after the trial noted:

Rarely have the fripperies of fashion been dissected with such gravitas in an Irish courtroom. Over four days last week, the middle-aged [male] barristers at times struggled to suppress their chuckles as they crossed swords over ribbed stitching, layered borders, sweetheart necklines and bust-hugging fibres. They did so in a court room littered with copies of Marie Claire magazine, door stopper editions of Vogue and expensive handbags.

And when the question of whether the KM designs were in fact sufficiently new to deserve protection arose, the judge had to remind the parties that the question before the court was not whether "hypothetical husbands" would recognize the difference. 

Still, in a battle between stuffed shirts, the new striped shirt carried the day -- at least in Ms. Justice Finlay Geoghehan's courtroom.

December 18, 2007

Counterfeit TradeMarx

Venezuelan President Hugo Chavez may be a committed socialist, but at least one member of his cabinet appears to be faking it.  Check out the stammered response of Pedro Carreno, identified as both Justice Minister and Interior Minister, when asked by a journalist whether it isn't contradictory to criticize capitalism while wearing a Louis Vuitton tie and Gucci shoes.

 

¡Viva la Revolución!

December 17, 2007

What Not to Wear, Canine Edition

Fans of the U.S. television show What Not to Wear (yes, a knockoff of the British original) will recognize host Stacy London in her spinoff show, Fashionably Late.  Some of the red carpet gowns that Stacy recently featured may also look suspiciously familiar -- though the long-limbed models are of the four-legged rather than the two-legged kind. 

 

This isn't the first time that Counterfeit Chic has covered the Little Lilly canine couture copies -- or noted that while Lara Alameddine's doggie dresses themselves do not violate intellectual property laws, use of celebrity photos or an image of a trademarked award might.   

America Ferrer's Monique Lhullier gown and copy

Interestingly, despite the outcome of the widely publicized "Chewy Vuiton" case, American designers have thus far shown little interest in limiting knockoffs intended for pets.  The proposed Design Piracy Prohibition Act makes no mention of animal clothing in its definition of fashion designs, so presumably even an exact copy of a Shih Tzu's sweater or a poodle's poncho would be fair game after passage of the bill (apart from any logos or labels).  A canine version of a couture gown might might meet the test for determining infringement of the original, but it is by no means certain that the adapted version would be sufficiently similar to the original to trigger protection -- even if marketed as a copy. 

Perhaps the canine couture market is too small to attract attention, or perhaps our biological predisposition to favor neotenous creatures makes us unwilling to censure anything that makes adorable little dogs even more so -- at least the eyes of those who regularly match their pets to their handbags. 

But with all due respect to Ms. London's guest, Counterfeit Chic's four-legged friends appear to prefer wearing only their own original -- and fabulous -- furs.   

December 12, 2007

Knockoff News 74

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

Chloe (left), Urban Outfitters, and BB Dakota dresses

And finally, for those of you who believe in a place "Where Dreams Come True" and who always root for Pinocchio in his quest to become a real boy, here's proof of a kindred spirit in the Italian court system: 

Presumably the Magic Kingdom will have something to say about the exercise of personal jurisdiction over its citizens...

December 11, 2007

Cops and Robbers

Attention copyists:  You may find a warm welcome in the U.K. -- or in Kent, at least, where the good cops are also bad cops.  At least allegedly. 

Oh Baby London onesie - £21IP Kat reports that designer Hannah McHalick of Oh Baby London is suing the Kent Police over their use of the slogan "I've Been Inside for 9 Months" on baby clothes.  The police have responded that their product line is different because they use the word "I've" in addition to Ms. McHalick's claimed phrase.

While the Metro news article on the case didn't identify Oh Baby London's IP argument with any specificity, Jeremy Phillips at IP Kat doubts that the phrase in question would qualify as an original literary work under U.K. copyright law.  He also questions its use as a trademark.

But what if the case were considered under U.S. law?  While it's axiomatic that words and commonplace short phrases cannot be copyrighted, courts have occasionally found infringement in cases alleging reproduction of as little as a sentence fragment.  For example, there's Andreas v. Volkswagen of America, Inc., 336 F.3d 789 (8th Cir. 2003),  in which the voiceover of an Audi commercial, "I think I just had a wake-up call and it was disguised as a car and it was screaming at me not to get too comfortable and fall asleep and miss my life," was found to infringe the work of an artist who accompanied his drawing with the words, "Most people don't know that there are angels whose only job is to make sure you don't get too comfortable & fall asleep & miss your life."  So the Oh Baby London claim wouldn't necessarily be dismissed immediately, even if the majority of cases involving short phrases find that they are not in fact sufficiently creative to be subject to copyright protection.

Kent Police onesie £12And what about trademark, the natural IP home for short phrases?  I have to agree with Jeremy that there's some question as to whether Oh Baby London's "Been Inside for 9 Months" actually indicates to consumers the origin of the clothing, and thus qualifies for trademark protection.  Not every cute, marketable phrase is a trademark, in the U.S. or the U.K.  And yes, the phrase is descriptive -- or misdescriptive -- but of the baby, not the clothing.  Of course, all this might still leave Ms. McHalick with an unfair competition claim in tort law. 

And one other thing:  If Ms. McHalick is indeed successful in claiming protection for her clever turn of phrase, U.S. courts would be no more mollified than their U.K. counterparts at the Kent Police's addition of an "I've."

Whatever the outcome of the lawsuit, IP Kat is quite right that the cops in Kent need a bit of time on the inside...of an up-to-date legal hornbook.   

December 08, 2007

Free Fake with Purchase

"You want a fake with that?" 

Color cosmetics are showing uncharacteristically strong sales this holiday season -- with a little help from a knockoff handbag, at Lord & Taylor at least.  The Bag Chick caught the venerable department store, recently sold to real estate equity investors, advertising what looks suspiciously like a Yves Saint Laurent Downtown bag (left) as a free gift with purchase.  Closer inspection proved that not only was the promo bag a knockoff -- note the absence of buckle tabs and the somewhat different proportions and hardware, even more apparent if you head over to the Bag Chick's post at In My Bag for an enlarged view -- but that no actual YSL cosmetic samples were included in the promotion. 

YSL Downtown medium patent ($1395) and Lord & Taylor gift with $85 purchase

This isn't the first time that the Downtown has gone downmarket.  And legally speaking, there's typically nothing that YSL can do about it -- unless a copyist has taken not only the design but also the YSL logo without authorization.  The Bag Chick's initial response, however, is evidence that the Downtown design alone has sufficient secondary meaning to qualify as protected trade dress, since the mere image evoked YSL in her mind. 

Memo to the Gucci Group's lawyers:  If you decide to take action against L&T, send the lady a lip gloss -- ideally tucked inside a real lipstick red Downtown bag.  She's earned it!

December 06, 2007

Fine Dining at Smugglers' Cove

Some dining options can be as tough as shoe leather.  And some actually are shoe leather -- counterfeit Nike shoe leather to be exact -- labeled as "refrigerated noodles" for purposes of avoiding customs inspection.

The U.S. attorney's office in Manhattan has announced the breakup of a major smuggling ring, with 10 people arrested and $200 million in fake fashion items seized, including counterfeit Coach wallets, Burberry handbags and Polo Ralph Lauren and Baby Phat clothing, as well as the creatively labeled Nike Air Jordans.  The operation brought goods into New York from China with the assistance of $500,000 in bribes -- to an undercover customs agent.  Now that's using your noodle. 

Shipping container with counterfeits inside (WWD)

Want to hear more about what's on the menu in Chinatown?  Join WWD reporter Liza Casabona as she talks to strangers and walks down dark alleys. 

December 05, 2007

Frills and Furbelows

Next year may be the Year of the Rat, and Ratatouille may be animating discussion about the Oscars, but Counterfeit Chic doubts that Chanel will be particularly gRATified by artist Kristofer Paetau's placement of its logo on actual taxidermied specimens, no matter how au currant the lace-trimmed critters may be. 

On the upside, fur-wearing Vogue editor Anna Wintour and PETA may finally find common ground.

Care to see the models who would dare to wear the little boudoir beasties?  Check out TransRatFashion (caution: NSFW!). 

December 04, 2007

Happy Hannukah!

A chic -- and apparently kosher -- menorah from the sparkling Blingdom of God.  Now we know what to do if the shoe doesn't fit!

Zebra Crossing

Sam Kerr at Lie-ins and Tigers offers Paul Smith fans a visual treat (Te Smith, this one's for you!):

But if Mother Nature really did adopt Sir Paul's signature stripes, could the designer seek legal redress?  Well, most stripes are probably too commonplace to be copyrighted, but in a number of cases courts have found that complex striped patterns are sufficiently original to merit protection.  So feel free to wear colorful stripes -- or hang them by the chimney with care, for that matter -- but avoid copying, lest you end up wearing stripes of another sort.

For more on this seemingly innocuous pattern, read The Devil's Cloth: A History of Stripes -- and then ask yourself why lawyers' pinstriped suits seem so appropriate. 

Via FFFFOUND!

December 02, 2007

Knockoff News 73

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

  

Style and Il Sistema: Roberto Saviano's Gomorrah

Philosopher-journalist Roberto Saviano doesn't speculate about the relationship between high fashion and organized crime.  He doesn't have to.  He's seen the connection up close -- and even braved the icy waters off the Port of Naples at dawn to help unload goods that would never pass through customs.

In the Italian bestseller Gomorrah, recently made available in English translation, Saviano offers an exposé of the Neapolitan Camorra so damning that he now lives under constant police protection.  It turns out that while the more famous Sicilian Mafia was drawing attention with bombings aimed at law enforcement, the Camorra -- "il Sistema" to those in the know -- was amassing a profitable portfolio of drugs, toxic waste disposal, and, yes, fashion.  Real and fake.

The shady businessmen of Saviano's story have brokered production of legitimate -- albeit untaxed -- garments for some of the most exclusive "made in Italy" labels.  They have also developed a global trade in counterfeits turned out by the very same skilled hands.  In his words:

Not only is the workmanship perfect, but the materials are exactly the same, either bought directly on the Chinese market or sent by the designer labels to the underground factories participating in the auctions.  Which means that the clothes made by the clans aren't the typical counterfeit goods, cheap imitations, or copies passed off as the real thing, but rather a sort of false-true.  All that's missing is the final step:  the brand name, the official authorization of the motherhouse.  But the clans usurp that authorization without bothering to ask anybody's permission....

Products of slightly inferior quality have yet another venue:  African street vendors and market stalls. 

According to the book, designer labels have been slow to protest for fear of losing access to factories in both Europe and Asia, transportation systems, and many retail outlets around the world, all of which are controlled or influenced by Camorristi. 

Saviano's writing, even in translation, often becomes a sort of grim prose poetry, depicting sordid details far removed from the glamor of Milanese runways or the idyllic charm of Tuscan vacations.  The narrative can be choppy and impressionistic.  But Gomorrah is an extremely powerful work by a gifted writer and a clear-eyed son of the region, a work written from the gut and not merely the brain -- and hopefully not in the author's blood.

P.S.  If you understand Italian, check out this interview with Saviano (in several parts), striking for its matter-of-fact tone. 

 

Thanks to my research assistant, Fordham law student, and Italophile Anthony Mascarenhas for the tip!