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February 29, 2008

Law of the Lipstick Jungle, Part 2

Anton Chekov famously noted that if you hang a gun on the wall in the first act, you'd better fire it by the last.  It seems that the writers of the ABC television series Lipstick Jungle were listening. 

After introducing a dishonest assistant who appropriates her boss's work in episode 2, the preview for episode 5, "Dressed to Kill," shows fashion designer Victory Ford discovering her protege's perfidy. 

 

We'll have to wait until March 6, when the episode airs in the U.S., to find out what happens.  Until then, two words of advice from the jurisprudential jungle:  noncompetition agreement.

Related post:  Law of the Lipstick Jungle

February 28, 2008

The Audacity of Hope

Mark Halperin in his Time magazine blog noted an interesting and presumably unauthorized reproduction of a recent cover at an Obama rally in Texas.  Asks Halperin, "Who made money off of the sale of that shirt?"

Unauthorized Time Obama tee 

The Clinton campaign, of course, denies having circulated the "dressed" photo. 

Walk of Shame: Oscar Knockoffs by Faviana

Sunday's Oscar parties are over and the Monday hangovers have faded, but knockoff artists are still hanging around and sniffing at the leftover crumbs from the fashion banquet.  A Cachet copyist immediately revealed his top targets to WWD, and now the notorious Faviana label has named its own fashion victims, including two of the same dresses as Cachet.  

In addition to seeking secondhand publicity via Access Hollywood, Faviana has gone to great lengths to make sure that the models for its copied samples resemble the actresses who wore the original gowns to the Academy Awards -- or at least their morning-after incarnations.  Imagine Katherine Heigl with her curls gone flat and her roots showing, Jessica Alba with her bodice feathers bedraggled, Miley Cyrus haphazardly smearing lipstick around her mouth after partying with the grownups, or Amy Adams with shiny skin and an extra dessert under her belt, and you'll get the picture.  Or if your mind's eye refuses to conjure such wreckage, just scroll down: 

Katherine Heigl in Escada and Faviana knockoff

Jessica Alba in Marchesa and Faviana knockoff

Miley Cyrus in Valentino and Faviana knockoff

Amy Adams in Proenza Schouler and Faviana Knockoff

Girls, don't let these be your post-prom pictures -- just say no! 

And while the fashion police ponder these aesthetic offenses, does the legal system have anything to say for itself?  The gowns, of course, are unprotected by U.S. law -- but the photos may be subject to copyright.  Since Faviana is clearly using them for a commercial purpose, the company had better have sent its own photographer to snap these red carpet shots -- or at least licensed their use.  Even that wouldn't leave Faviana home free, however, if the actresses in question object to their images being used to hock fashion schlock.  Some of these leading ladies are reportedly paid a pretty penny to appear in the real thing, and it's unlikely that any one of them would agree to pose for a Faviana ad or to deputize a double to do so.  Perhaps the fashion houses can't take direct action against blatant copyists -- but there's nothing to say that they can't persuade their lovely mannequins to do so. 

For the moment, however, sweatshop season is in full swing -- and Counterfeit Chic has another pressing question to ponder.  Have I spent too much time staring at various trademarks, or (no offense to the charming and talented Proenza Schouler boys here) does the bodice of Amy Adams' gown recall the silhouette of Mickey Mouse? 

Many thanks to Steven Kolb for the links!

UPDATE:  Some wise words from Professor Rebecca Tushnet:

You know I respect your work, even if we may disagree on some things.  So I hope you'll take this as a friendly question:  did you really have to suggest that the decidedly skinny model in the last Faviana picture was fat?  Aside from accuracy -- and I admit, I don't follow fashion and I don't see such huge differences between the glowing stars and the nameless models -- I wish you wouldn't suggest that having an extra dessert is a problem.  When I see something like that, I have to wonder how fat you think I am and what you think that means about my moral standing.  Criticize the copyists all you want.  But it's hard for me to read attacks on the models for being, in my eyes, a perfectly reasonable -- skinny actually -- shape. 

And a response:

Point taken, Rebecca -- you're quite right, esp. with the skinny model debate and issues involving eating disorders in the industry and among the young women it influences still unresolved.  The model certainly isn't fat or even particularly curvy, though as I looked at the picture, I didn't like the shape created by the belt on the copy -- a straight belt or waistband in general is apt to create a strange tummy bulge even on a thin person where a curved belt or waistband won't (but requires more fabric and care in construction).
There's no moral implication about extra dessert, though -- just make mine chocolate.  I was  thinking of the various ways in which one's carefully constructed look can degrade over the course of an evening out -- mussed hair, lipstick re-applied after a few drinks, the need to loosen the belt after a gourmet dinner, etc. -- and I still find it amusing that the knockoff company tried to find doubles for the actresses but did such a sloppy job of styling them. 
Still, there are too many attacks on women based on unrealistic standards of body shape and size, and I don't mean for this post to be taken as one of them.  For the record, womanly curves and angles are both fine, and healthy is the ultimate ideal.  Thanks for the reminder that we're not yet living in a world where we can take that for granted.

February 27, 2008

The Counterfeit Triangle?

Attention New York tourists:  Canal Street is closed.  Or a least part of it is.  For the moment. 

After the police conducted a $1m raid Tuesday morning, Mayor Mike Bloomberg posed with a "CLOSED" sign among the trays of fake watches and piles of counterfeit handbags.  The bust involved 32 separate storefronts, all owned by the same estate and located in a triangular city block newly dubbed the "Counterfeit Triangle," bounded by Canal, Walker, and Centre Streets.  The counterfeit trade, according to the press release, is "standing in the way of the revitalization of Chinatown," and the mayor intends to make renting to counterfeit retailers "a losing business proposition." 

If the Counterfeit Triangle is anything like the surrounding blocks, however, its mystery is not one of unexplained disappearance but incorrigible reappearance.  Seize the merchandise, arrest the sellers, put up warning signs, raze the buildings, sow the earth with salt -- and still a runner will stand on the corner whispering a litany of familiar brand names. 

But hey, the mayor isn't running for President, so he's got to set up a podium somewhere.  Call it the politics of hope. 

Via the New York Times City Room blog. 

February 26, 2008

Loss of Cachet

With so many actresses playing it safe at the Oscars, it was a lean year for the red carpet scavengers seeking knockoff fodder. 

Michael Ruff of Cachet, however, has gone on record with WWD about his top targets.  Naturally, there will be long red dresses -- a trend that will be noted by real designers seeking inspiration and design pirates alike.  The soon-to-be Cachet copies include Heidi Klum's John Galliano, Anne Hathaway's Marchesa (red carpet bait as soon as it came down the runway; it was just a matter of which actress), and Katherine Heigl's Escada:

The company also announced plans to replicate Jessica Alba's aubergine Marchesa (though presumably not in pregnant proportions), as well as Jennifer Garner's Oscar de la Renta and Penelope Cruz's Chanel:

Ruff may be barking up another tree, though, if Harvey Weinstein, the movie mogul and now spouse of Marchesa co-designer Georgina Chapman, hears about his plans.  Last year, when another manufacturer boasted of his intent to copy a Marchesa straight off the red carpet (this one, perhaps?), Weinstein played the good boyfriend and beat up the guy called his extremely famous trial lawyer.  Somehow, the would-be copyist changed his mind.  Now Cachet claims it's going to copy two Marchesas...

The copying is, of course, legal in the U.S. -- at the moment.  Perhaps Harvey's bulldog invoked trade dress protection, since the dress was immediately famous; perhaps he considered the probability of distribution to a foreign jurisdiction where the copying might be actionable; perhaps he simply threatened to dog the copyist's footsteps with various legal challenges for the rest of his natural life.  Whatever the tactics, they're unlikely to be successful -- or even available -- in most cases.

For the moment, then, Cachet is simply cackling over its Academy Awards loot and calculating its prom-season profits.  The beading and other details on some of the gowns are too expensive to copy, Ruff notes, "But with the others, especially the one-shoulder dresses, we will be able to do something more exact."

February 25, 2008

Knockoff News 78

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 Counterfeit Chic must confess to having seen almost none of this year's Academy Award-nominated films (did anyone go to the movies this year?), there's one winner that nevertheless must receive applause:  The Counterfeiters, Austria's entry for Best Foreign Language Film.  No clothes, just cash -- but name, after all, is destiny. 

February 24, 2008

Counterfeit Chic on NPR: Kudos to Kojo

Last week Kojo Nnamdi of the Washington, DC, NPR affiliate, WAMU, hosted a discussion about the Design Piracy Prohibition Act -- which, perhaps predictably, turned into a bit more of a debate than either Kojo or his expert producer, Tara Boyle, probably intended.  Nevertheless, Kojo did an amazing job of framing and directing the conversation.  And from my perspective, it's always amusing to find my opponent so clueless about the actual issues as to be essentially reduced to arguing, "Well, Congress doesn't know either!" (not true) and making up stories about the origins of the legislation (also not true).  (Hint:  It's the many creative designers out there who are asking for protection -- and in fact, they're asking for less protection than their counterparts in Europe, Japan, etc. currently enjoy.) 

February 20, 2008

Marc Jacobs' Swedish Smorgasbord Selection

Has Marc Jacobs spent too much time hanging around with Richard Prince?  The celebrated fashion designer collaborated with the iconic appropriation artist on the latest insta-"It" bags from Louis Vuitton -- and might have picked up a tip or two about copying in the process. 

It seems that a scarf celebrating "Marc Jacobs since 1984" may originally have read "Linsell," the name of the small Swedish village it depicts.  And now one of Linsell's native sons, Goran Olofsson, claims that his father Gosta created the scarf along with other tourist souvenirs in the 1950s, and that he potentially inherited his father's copyright. 

Historians of tourism (yes, really) and international copyright lawyers will no doubt spill a great deal of ink over this small square of silk.  But before the war of words gets underway, what are the basic legal questions? 

Initially, assuming that Gosta Olofsson is the original artist, was the design protected under Swedish copyright?  And for how long? 

Next, if the scarf was indeed copied, where did the copying and distribution of the scarf take place?  And was a copyright in the design also recognized under that country's (or those countries') laws?

Marc Jacobs presumably designs whereever he goes, but principally in both New York and Paris.  Until 1990, copyright protection in the U.S. was dependent upon a series of formalities, including registration with the Copyright Office -- something that a foreign souvenir-maker would've been unlikely to consider.  No registration, no protection -- and the work would've been part of the public domain.  But wait, not so fast.  Section 104(A) of the U.S. Copyright Act provides for restoration of copyright in some foreign works that fell into the public domain because their owners failed to comply with then-required U.S. formalities.  If the original Olofsson work meets the requirements of this section, it could still be subject to copyright in the U.S., though the law also provides for a period of immunity for parties who relied on the work's being in the U.S. public domain. 

On the other hand, countries that were members of the Berne Convention for the Protection of Literary and Artistic Works back in the 1950s, including both France and Sweden, would offer artists from other member nations the same copyright protection as they would their own citizens -- without formalities and irrespective of the law of the country of origin of the work.  Thus, if the alleged copying and distribution took place in France, the relevant copyright law would be French.

And the analysis continues...for every country in which Marc Jacobs may have distributed the scarf.

Then, of course, assuming valid copyrights and actual copying, there's the question of whether the younger Mr. Olofsson actually owns the copyright, or whether long-lost Swedish half-siblings or aging co-creators will suddenly appear on the scene. 

At the end of the day, it's a safe bet that it will cost a krona or two to figure out whether Marc Jacobs borrowed a work from the public domain, infringed a copyright, both (in different jurisdictions), or neither.  And if all of this sounds as incomprehensible as a recipe from the Swedish Chef, well, welcome to the wonderful world of international copyright law. 

(Note:  All umlauts omitted.  This problem is dotty enough.)

Via Gawker and Sassybella

February 19, 2008

Washington Fashion Week 2: The Design Piracy Prohibition Act

Narciso Rodriguez before Congress -- and yes, your favorite law prof just behind him wearing grey (Narciso, of course)Valentine's Day in the U.S. Congress was about anything but eros, or even caritas, as House Democrats refused to extend the government's surveillance powers and Republicans staged a walkout.  Nevertheless, bipartisan pleasantries prevailed in the House Subcommittee on Courts, the Internet, and Intellectual Property's "Hearing on Design Law:  Are Special Provisions Needed to Protect Unique Industries?"  (Hint:  Yes -- for fashion at least.)

The oversight hearing was interrupted twice to allow committee members to go and vote, or otherwise put out fires on the House floor, leaving attendees to mill around in what one described as "a strange cocktail party without drinks."  (Quite a few people took advantage of the breaks to have their pictures taken with the award-winnning fashion designer and witness Narciso Rodriguez.)  Depite the delays, however, there was no doubt that Congress is taking the need for fashion design protection seriously. 

THE WITNESSES

Representative Bill Delahunt (D-MA), one of the original co-sponsors of the Design Piracy Prohibition Act, set the tone for the afternoon with his opening testimony, in which he linked fashion design piracy with counterfeiting.  (After all, every fake handbag out there starts with a copied design, and labels are often added stateside to avoid Customs enforcement.)  Rep. Delahunt further noted that one of the sectors of the troubled U.S. economy that actually produces a surplus in the trade balance is intellectual property, and that passing stimulus packages without recognizing and protecting U.S. strengths is "absurd and ridiculous." 

The next witness, Professor Bill Fryer, offered an overview of the issue of design protection across various industries -- a subject with which he's been engaged for many years.  In response to questions from Representatives Howard Coble (R-NC) and Brad Sherman (D-CA), Prof. Fryer noted that the "purpose of IP is to prevent unfair business practices" and that when a competitor takes apart one of Narciso's designs, measures the pieces, and creates a cheap reproduction, there's not much doubt that copying has occurred.  He ultimately concluded that, though the bill as introduced needs some refinements, industry-specific protection would be a good thing for fashion. 

Narciso Rodriguez testified next on behalf of the CFDA.  His very personal prepared statement told the story of a Cuban-American boy who took out loans to attend Parsons and got his big break when he made a wedding gown for his dear friend Carolyn Bessette's marriage to John F. Kennedy, Jr., only to see it copied nearly 8 million times.  Publicity may be nice, but it doesn't pay the bills -- and Narciso has been copied over and over again, to the point where he has never been able to launch a lower-priced diffusion line himself.  Last year Liz Claiborne acquired an interest in his company, finally giving him a degree of financial stability, but he hasn't forgotten what it's like to be a struggling young designer or how it feels to have what he calls "my DNA" stolen.  When his time was up and he was asked to summarize his testimony, Narciso looked at Subcommittee Chairman Howard Berman (D-CA) and said, "We need your help."  Which pretty much says it all.   

Narciso Rodriguez Fall 2003 original (left) and ABS copy

Next up was a clothing manufacturer, Steve Maiman, with testimony drafted by...let's just say one of the usual suspects.  Counterfeit Chic deliberately didn't check out his merchandise to determine its "inspiration," but the effort turned out to be unnecessary anyway.  He actually showed up with a report from a trend service, claiming that "all designers do it the exact same way."  Narciso begged to differ, noting that he doesn't subscribe to any such reports and that his inspiration, like that of many of his artistic colleagues, comes from a more ethereal source.  Later Narciso added, "I do wake up and work on a mannequin, as do many other creators who create original garments."  And not just at the couture level, either.  (Later Counterfeit Chic heard more than one fashionable attendee express embarrassment that the manufacturer had actually shown up with evidence of his own lack of originality.)

The final two witnesses, Carl L. Olsen and Jack Gillis, addressed the issue of design protection for automobile parts.  While cars certainly make nice accessories, there seemed to be general agreement among both members of Congress and witnesses that the questions currently being raised by the fashion industry and the automotive industry are quite different.  As Representative Bob Goodlatte (R-VA), an original co-sponsor of the Design Piracy Prohibition Act, noted, replacement parts really aren't an issue for fashion designs (the occasional lost button aside).

KEY ISSUES

In the Q&A, subcommittee members focused on a couple of significant details with respect to fashion design protection, in particular how to draw the line between inspiration and copying and what the impact of design protection on consumers would be. 

On the first issue, the imitation/inspiration divide, it became clear that the largest trade organizations within the fashion industry have already engaged in extensive discussion of what should and should not be protected and how to express the difference in legislative terms that recognize original designs while leaving general trends in the public domain.  Of course, courts already make similar distinctions in copyright, patent, and trademark cases.  (Full disclosure:  Your favorite law prof has been at the table during many of those discussions, not representing anyone in particular but offering an opinion as to the efficacy of proposed language and its potential impact on, among others, emerging designers.) 

As a board member of the CFDA, Narciso noted that talks with the AAFA have been ongoing and that he's hopeful that there will be final agreement within a month.  Both during and after the hearing, subcommittee members congratulated Narciso and the CFDA on their efforts to achieve unanimity within the fashion industry. 

Manufacturer Maiman, when pressed by Rep. Goodlatte, conceded that he was "not against [exact] copying" -- what Rep. Berman had earlier referred to as xeroxing.  Not surprising, given Maiman's earlier admissions about the source of his designs, but he acted reluctant give a direct answer out loud.  (Narciso's response?  "I'm appalled.  That's theft!")

On the second issue, the effect on consumers, Narciso noted that fashion consumers in Europe, which already has design protection more extensive than that proposed in the bill, actually have better low-priced options than U.S. consumers.   Who knew that he likes to buy his own inexpensive, well-designed underwear in Spain? 

THE DOCUMENTS

(Check back for updates, if any.)

THE VERDICT

Fashion Designers 2, Copyists 0 (counting the previous subcommittee hearing)

Automobile manfacturers -- well, let's just say Counterfeit Chic's focus was elsewhere.   

February 17, 2008

Edible Briefs

Clad only in a hat, boots, tight white briefs, and a strategically placed guitar, the Naked Cowboy is a must-see attraction for visitors to New York City's Times Square.  But when Mars, Inc., paid homage to the street performer's star power by dressing a blue M&M in his signature costume for a video billboard, the Naked Cowboy, a.k.a. Robert Burck, was not amused.

According to a $6 million lawsuit, the candy company appropriated Burck's likeness without permission and without offering compensation.  Not surprisingly, the video disappeared from public view almost immediately.  If Vanna White can invoke her rights of publicity under California law to prevent Samsung from using the image of a robot in a blonde wig and evening gown in an ad, then surely Burck -- who apparently makes quite a good living as a street performer and is available for corporate appearances -- can prevent an animated chocolate candy from stealing his schtick. 

The M&M meltdown is just one more reason why ad agencies should run their clever references by legal before making them public.  Counterfeit Chic must applaud one element of the ad, though:  the color choice.  I'd turn blue, too, standing outside dressed like that.

Thanks to Kate Moore for the tip!

February 16, 2008

Law of the Lipstick Jungle

It's not a good season for powerful, high-achieving women.  The buzz has gone out of Hillary Clinton's campaign, leaving one to wonder how the first serious shot at nominating a woman for President could seem, well, boring.  And the two TV shows vying to be worthy successors to Sex and the City, but with elite career women as the main characters -- Cashmere Mafia and Lipstick Jungle -- seem to play the crying game as often as Hillary in New Hampshire.  And New Haven.  And....

Behind the veil of televised tears, however, there is one plotline of potential interest to Counterfeit Chic.  In the original Lipstick Jungle novel, a flashback shows the fashion designer character facing down a copyist early in her career before going on to fame and fortune.  In the TV version, the designer, Victory Ford, has all but lost her business -- and, as a final parting gesture, her assistant rips pages from Victory's sketchbook and presents them as her own at a new job. 

 

As of episode 2, the designer hadn't yet discovered her assistant's treachery.  When she does, however, will she have any legal recourse?   

Since the designer told the assistant to "take anything you want," it might be difficult to argue that the pages were stolen.  And since the assistant didn't trace the designs but simply took the pages, there's no copyright issue.  As for the assistant presenting the sketches as part of her own portfolio, and telling her new employer that she'd actually been the design force behind the Victory Ford label, she could lose her job for essentially lying about her resume -- but that's up to her new boss, not her old one.  If the designs were actually produced by the new employer and were so recognizable that the public assumed they were Victory's work, the designer could have a trade dress argument -- but it would be an extremely weak one.  How could the public be confused as to the origin of specific designs it had never seen? 

In some non-US legal systems, however, Victory Ford could call on her lawyers to take action against her former assistant.  As the artist responsible for the sketches, Victory would be entitled to have them attributed to her and not to someone else.  Moreover, turning the sketches into clothing -- making 3D copies -- would be actionable as well, since fashion designs are subject to protection in the EU, Japan, India, etc. 

Presumably the story will be continued in future episodes of Lipstick Jungle.  Whether Victory is ultimately victorious or not, however, she's certain to cry. 

February 13, 2008

Washington Fashion Week: The Design Piracy Prohibition Act

Just when you thought the fashion flock had moved on to London, Milan, and Paris, the focus is back stateside -- at least as far as the law is concerned.  Tomorrow Congress will once again take up consideration of HR 2033, the Design Piracy Prohibition Act, with the extraordinarily talented (and constantly copied) designer Narciso Rodriguez as star witness. 

Ten years ago, when Narciso created an unforgetable gown for Carolyn Bessette's wedding to JFK, Jr., copyists knocked the groom flat in their haste to knock off the bride's dress:

John and Carolyn v. Flat Jack and his not-so-fair lady

But Narciso hasn't forgiven, or forgotten.  Tune in to the live webcast at 2:00 pm EST to hear the two-time CFDA award winner turn the tables on design pirates with his own Valentine's Day massacre.  (Happily, your favorite law prof is already on the record on this issue, but I'll be in the chic cheering section -- wearing Narciso, of course.) 

Counterfeit Chic will, of course, be back soon with a report on the hearing.  In the meantime, check out the comprehensive new Stop Fashion Piracy website, your resource for the voice of creative design.

February 12, 2008

Gossip Girl

Why bother with crossword puzzles when you can test your cleverness with blind news items?  Fashion blog Jezebel's model mole, "Tatiana," reported the following from New York Fashion Week:

But Friday afternoon, well, rocked. I was working for a designer -- or, let's face it, design team-- that, like Wednesday's, steals shamelessly from vintage fashions, then reproduces them at minimal cost in the massive industrial sweatshops of China and Indonesia, only to charge absurd markups back home, and is owned by a parent conglomerate that also holds a sheaf of other global brands. Its founder is noted for having once donated to Rick Santorum. Yet I can muster nary an ounce of outrage; everyone was just too damn agreeable.

Apparently the fashion world is so fickle that mere pleasantries can dissipate the sternest ethical objections.  The real question, however, is what label the pseudonymous catwalker might have been referencing. 

A key clue here is Rick Santorum.  The president of Urban Outfitters, Richard Hayne, stirred controversy a few years ago when the chain advertised T-shirts with the slogan, "Voting is for Old People."  The media subsequently noted that Hayne had donated a substantial sum to the conservative Pennsylvania senator.  Who has since lost.  Badly.  (And somehow that T-shirt hasn't reappeared this year....)

Urban Outfitters also owns Free People and Anthropologie, the latter of of which previewed a new line called Leifsdottir during Fashion Week.  And yes, Anthropolgie is known for being, ahem, somewhat less than original, though vintage items -- as opposed to new designs still in production by their creators -- are free for the (rag)picking. 

So, whether Leif's fair young daughter has a dark side or some other brand has been cutting a few design and production corners, someone was watching.  And whispering.

Is it she?  Polaroids at Leifsdottir. 

February 11, 2008

Camelot, the Sequel

This evening on live television, Larry King asked the smart and chic Michelle Obama if she'd ever thought about being First Lady.

Michelle Obama channels Jackie Kennedy, the White House years

As if the Jackie Kennedy flip, sheath, and triple strand of pearls didn't say it all. 

Hillary, of course, has no such convenient sartorial model -- but at least her pantsuits have learned to clone themselves.

February 10, 2008

But New York Doesn't ♥ Gucci

When Gucci covered the city with "Gucci loves NY" ads to celebrate the Fashion Week opening of its new Fifth Avenue boutique, Counterfeit Chic wondered for a moment whether the fashion house had cleared the ad campaign with the notoriously determined defenders of the state's trademarked slogan, "I ♥ NY" -- and then dismissed the suspicion.  After all, if you're going to spend millions on an ad campaign, create limited edition merchandise with proceeds earmarked for charity, and promote an interactive website that actually links to the official state tourism site, you at least run it by legal, right? 

Perhaps not.  The New York Post reports that Gucci launched the campaign without ever contacting the state agency responsible for the trademark.  (Note to the Post:  Common error -- but trademark and copyright are not interchangeable.)  Apparently New York state and Gucci officials met on Friday to find a way to share the love. 

Via Gothamist.

February 08, 2008

Knockoff News 77

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, just how many of the customers slipping into the "secret," counterfeit-stuffed cubbyholes off New York's Canal Street are actually reporters?  If the number of feature articles built around such trips is any indication, quite a few.  Truth be told, Counterfeit Chic may have been asked to accompany one, or two, or three...

But the popular press junket may be history, thanks to a too-acquisitive, uncritical, and unapologetic piece from the Miami Herald:

Even the ostensibly cautionary sidebar concludes by noting that "casual buyers are unlikely to be busted" -- before offering shopping tips in the form of "homework" for future counterfeit customers.

Readers, including the IP manager for Coach, excoriated the paper for promoting illegal activity, leading its ombudman to offer a tepid semi-apology and a promise not to buy any more fakes himself.  No word on whether the "journalistic porn" actually increased circulation.  Or whether the paper reimbursed the reporter's $215 outlay. 

Thanks to Kate Lee for the tip!

February 06, 2008

A Call to Arms: Marc Jacobs Involved in Bribery Scandal

A bribe or a business expense?  The answer often depends on the cultural context. 

When it comes to alleged payments by Marc Jacobs International to secure prime show space at the 69th Regiment Armory during New York Fashion Week, however, Attorney General Andrew Cuomo's position is clear.  A deliberately timed 31-count indictment, 24 counts of which involve Marc Jacobs, claims that since 2000 former Armory superintendent James Jackson solicited a total of more than $30,000 in illicit gifts, including money, computers, and exercise equipment, in exchange for facilitating use of the landmark building.  The official daily fee for use of the Armory is approximately $6,000. 

While Marc Jacobs' elaborate show will go on -- it's one of the hottest tickets of Fashion Week, after all -- the AG has not ruled out bringing charges against Marc Jacobs International or its powerhouse PR and production firm, KCD, which allegedly paid the bribes.

Should you be one of the lucky ones with an invitation to the Friday evening event at the Armory, consider taking along a book for the inevitable wait.  Counterfeit Chic suggests Bribes, a an in-depth historical review by Judge John T. Noonan, Jr., unfortunately out of print but still available used.  In some cases and places, bribes are even tax deductible -- though Marc Jacobs probably shouldn't claim a refund just yet. 

69th Regiment Armory

February 05, 2008

From Reality to Runway

Designers find inspiration in some unlikely places.  Thus far during New York Fashion week we've seen warrior women and vagabond heroines; we've gone back to nature and back in time.  But one designer seems to have taken inspiration from fast fashion for teens -- perhaps too literally.

Delia's started in 1994 as the first catalog operation targeted at the high school set and has since branched out into both online and brick-and-mortar retailing.  With dresses starting at USD $29.50, its customers are still babysitting, not running Fortune 500 companies or running for office.  (Side note:  Vote, people!  It's Super Tuesday!)

Abaete, a designer line founded in 2004, also appears aimed at young women -- or at least those who shop at Neiman's, Saks, and Bendel's and, in some cases, appear on stage and screen.  If Abaete seeks to dress relatively affluent trendsetters, however, why does one of its looks sent down the runway on Saturday look suspiciously like one that appeared in the Delia's catalog last year and is still available online for $44.50

Delia's Brigitte dress (left) and Abaete (right)

But Abaete isn't just trolling the mall for knockoff bait.  Other looks are similarly derivative -- the deep violet side-ruffle dress and similar black and white side-ruffle blouses are available this season at Barney's.  From Lanvin.  As for the color-blocked styles, Narciso Rodriguez and Jonathan Saunders clearly got there first, although we won't quibble with mere inspiration.  It's no wonder that the usually effusive Style.com summed up Abaete's fall runway by noting, "Anything to write home about? Perhaps not." 

Sad, really.  Especially since the name of the line is the designer's family name -- and translates roughly to "person of virtue." 

Thanks to amazing Counterfeit Chic reader Lara, whose vast visual memory is a thing of beauty, even when the images she recalls are not!

February 04, 2008

Live Fast: Halston at Internet Speed

HalstonThe morning after Halston's first fashion show, socialite Babe Paley showed up outside his studio seeking to purchase her favorite look -- immediately.  Now you can do the same.

The latest reincarnation of the iconic designer's label will appear on a New York runway at 2 pm today.  Tomorrow, online retailer Net-a-Porter will offer 2 of the looks, a daytime dress and an evening gown, with same-day delivery in New York and London and next-day delivery elsewhere.  In an industry where the 4-to-6-month gap between display and delivery has been under increasing pressure from consumers who have immediate access to Style.com, blogs, and television coverage, the plan is both revolutionary and inevitable.  No, it won't work for every look from every show -- the 2 dresses had to be chosen and manufactured in quantity beforehand, as yet too great a commitment to become standard practice for high-end items -- but it's a fabulous "what's next" moment.  And great PR.

Even better, it's an answer to the ubiquitous copycat problem.  WWD quotes Net-a-Porter founder Natalie Massenet:

"I am sure this will be a shock to the brands that specialize in knocking off some of the talent in the fashion industry,"  she added.  "They had their cake and have been eating it for a while, and we're now saying, 'We work with the brand to reclaim their ability to sell their product first.'"

Stefani Greenfield, co-owner of Scoop, NYC, concurs:

"For so long people have been knocking off and getting it out there and beating a designer that has to deal with craftsmanship, workmanship, and details that take time," she said.  "This allows the consumer to be part of our moment in fashion."

Presumably music to the ears of Harvey Weinstein, one of the current owners of the Halston name and no fan of fakes. 

By all accounts, the man born Roy Halston Frowick would've loved the idea, too.  Not only did he dress the stylish denizens of Studio 54, but -- following an idea that was well before its time -- he also created a line for J.C. Penney.  Although his mass-market move nearly destroyed the brand, as high-end accounts and clients fled the association, it was nevertheless a vision of the future.  Halston surely understood that instant gratification is always in style -- and what could be more modern than shopping for designer creations while wearing pajamas? 

February 03, 2008

Super Fakes

Every year, sales of Super Bowl memorabilia total over $100 million.  That's a lot of T-shirts -- and a major magnet for counterfeiters.

According to an article in the New York Times, federal Immigration and Customs Enforcement officials headed to Arizona in advance of football's big game to sweep up fake tees and tickets, and even a $2,000 counterfeit jersey allegedly signed by members of the Patriots' offense. 

ICE freezes football fakes - by Doug Mills for the NYT

Happily for Giants fans, their opponents' celebrated offensive line turned out to be almost as flimsy as the jersey. 

P.S.  For more on the Patriots and false -- or at least overly optimistic -- trademarks, check out The Trademark Blog's just slightly gloating commentary.

February 01, 2008

She Who Laughs Last

Jessica Kagan Cushman is the type of woman who , when life gives her lemons, not only makes lemonade -- she opens a lemonade stand, franchises it, launches an IPO, and builds a villa in the middle of a Mediterranean lemon grove. 

So it is that when, as Counterfeit Chic readers will recall, Jessica  suspected Chanel of knocking off her wittily inscribed scrimshaw bracelets, she went into action.  First came her amusing scrimshaw response, a one-off "Ripped off by Chanel" bracelet.  Then she launched a line of less-expensive resin bangles to satisfy her new fans.  Now, Stiletto Jungle reports that Jessica has re-created her response to Chanel in black resin and made it available through ShopBop.  Aren't creative feuds wonderful?

As Counterfeit Chic noted at the outset of the dispute, Jessica most likely never had any legal recourse against Chanel.  While jewelry designs can be protected by copyright, the shape of these bracelets is not original.  What is original with Jessica is the clever combination of scrimshaw technique, bangles, and stylish pop phrases.  The general idea of printing a motto around a bracelet, however, cannot be protected. 

If, however, as many in the blogosphere suspect, Chanel appropriated the idea, Jessica is free to say so.  There's always the possibility that Chanel will challenge the truth of her assertion and scream defamation, but at least Jessica has editorial backup.  And does Chanel really want any more negative publicity on this issue?

What about Jessica's use of "Chanel" on her newest commercial creation?  The trademark is clearly used in a critical fashion -- "Ripped off by Chanel" -- and not as a source identifier.  Moreover, Jessica's own trademark appears prominently on the bracelet, further reducing any likelihood of consumer confusion. 

Under U.S. law, this type of nominative fair use is permitted, so long as Jessica hasn't used any more of the Chanel mark than necessary.  The fashion house might quibble over the use of the distinctive Chanel typeface, as opposed to some other generic lettering, but Jessica's ability to invoke First Amendment free speech protections is fairly powerful.  And a claim by Chanel that Jessica had diluted its admittedly famous mark would be subject to the same analysis.  (Of course, not all nations' laws offer the same leeway, and in a non-English-speaking country, consumers might be less likely to understand the critical nature of Jessica's phrasing.  Think of the varying results of trademark owners' challenges to domain name ownership of "sucks" sites.) 

What would Mlle. Chanel herself have thought of all this had she been in Jessica's shoes?  Certainly the champion of fake pearls would at least have appreciated the idea of plastic knockoffs of ivory bracelets -- and, as a businesswoman, she would've wanted to capture both markets for herself.  As to the issue of copying her original ideas, Coco was quite coy, making public statements in favor of copying while privately suing at least one notorious design pirate under applicable French law.  In the absence of legal recourse, however, one imagines that the queen of the stylish bon mot would've displayed wit equal to Jessica's. 

And if the modern house of Chanel really did rip off Jessica?  Presumably its founder would be as disappointed as its fans.