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April 30, 2008

April is the Cruellest Month

With spring weather, the season's new fashions are finally coming out of the closet -- and the knockoffs are close behind.  Judging from the Counterfeit Chic mailbox, perennial copyist Steve Madden appears to be having a particularly prolific period. 

Avid reader Elizabeth Marsh noticed Giuseppe Zanotti's satin roses (left) blooming on Steve Madden's "Blosommm" sandals:

The superfabulous Manolo (via StyleBakery Teen) recorded another entry in Madden's "ledger of shame," a copy of the Balenciaga Sportiletto (left):

And the stylish and studious Justina Lopez bagged Madden's version of Tory Burch's new tote (left) -- presumably manufactured with metal discs leftover from Madden's previous design raid

Many thanks to the astute Madden-watchers -- and here's wishing end-of-April showers on the flimsy fakes.

April 28, 2008

The Naughty List

Uncle Sam has released this year's naughty list, a.k.a. the 2008 "Special 301" Report, analyzing other nations' intellectual property enforcement efforts.  And sure enough, China is getting a lump of coal in its stocking this year, along with 8 other "priority watch list" countries and 38 on the lower-level "watch list."

Norman Rockwell 1939

In other bad news for China, Louis Vuitton has decided to pick up its toys and go home.  The boutiques will stay -- but amidst anti-French protests relating to Gallic support for the Dalai Lama, LV has postponed the "China Run" vintage car rally originally scheduled for late May

For smokin' analyis of China and intellectual property, remember to vist IP Dragon

April 27, 2008

Copying for Charity

Click for larger imageJudging from my inbox, more than a few of you have heard that Louis Vuitton has sued Danish artist Nadia Plesner over the t-shirt design at left. 

The image casts a Sudanese child from the troubled Darfur region in the role of Paris Hilton, complete with small pink-clad dog and designer handbag, in order to criticize the media's excessive coverage of attention-seeking celebutantes rather than genocidal conflict.  In Nadia's words, "Since doing nothing but wearing designerbags and small ugly dogs appearantly is enough to get you on a magasine cover, maybe it is worth a try for people who actually deserves and needs attention."  (The lack of undergarments may also evoke Ms. Hilton, but the artist doesn't mention her model's unmentionables.) 

The issue for Louis Vuitton, however, is that Nadia didn't just depict any designer bag, but a version of the iconic Multicolore toile pattern, complete with the LV initials morphed into dollar and pound signs.  The company objected to this use as trademark infringement and asked Ms. Plesner to stop selling the t-shirts.  The letter is interesting in itself, since the tone is fairly unusual for a C&D -- "Hey, we're all artists here, and Takashi Murakami and Marc Jacobs collaborated on that bag," rather than the typical demands for an accounting of all units sold, disgorgement of funds, destruction of all remaining merchandise, and the head of the offending party on a platter.  It even offers a nod to Nadia's "Save Darfur" mission.  Still, LV very clearly wanted the shirts depicting its trademarks off the market -- and Nadia responded with a defense of her freedom of expression.  (She also somewhat surprisingly started out by arguing that her drawing refers to designer bags in general and not LV in particular, but more on that in a moment.) 

After Nadia and Louis Vuitton failed to reach an agreement, the company filed the lawsuit that has drawn far more attention than Nadia's initial project.  Without deciding the case, let's take a look at why there's an impasse. 

Q.  Why do Louis Vuitton's lawyers object to the t-shirt?

A.  The simplest answer is that their job is to protect LV's trademarks.  And, legally speaking, they're supposed to object to unauthorized commercial distribution of those marks.  A trademark holder that doesn't enforce its rights can ultimately lose them, as the marks may be considered abandoned or even generic.  Every time you ask for a Kleenex instead of a tissue or make a Xerox instead of a photocopy, a trademark lawyer somewhere gets another grey hair. 

The same is true for the extremely recognizable Multicolore pattern, which has been copied over and over again and is the subject of ongoing litigation between LV and other manufacturers.  It is the responsibility of LV's lawyers to make sure that the public's association between the Multicolore design and the company is not weakened in any way.  Thus Nadia's claim that her design "is inspired by - and refers to - designers bags in general - not a Louis Vuitton bag" is the last statement that would be reassuring or persuasive to a trademark lawyer. 

Q.  But Nadia created the t-shirts for charity -- doesn't that matter?

A.  Yes and no.  We all love a good cause, and we admire people who actually take action when confronted with evil. 

From a trademark lawyer's perspective, however, unauthorized commercial distribution is a threat, whether or not the profits go to a good cause.  Even charities that hold trademarks have problems protecting their marks from other philanthropic parties with similar purposes.  A representative of a prominent health-related nonprofit organization once told my class that she spends much of her time admonishing other groups that have put her organization's logo on their educational literature or their healthy products.  As she put it, "We're a charity, but we're not in the business of giving away our trademark."  Similar issues arise when trademarks are "borrowed" for religious purposes.  Trademark owners who object aren't necessarily grumpy atheists, just concerned about their marks. 

LV's initial letter to Nadia reflects this tension between sympathizing with social concerns and protecting intellectual property -- hence the unusually moderate request and tone for a C&D. 

Q.  So why didn't Louis Vuitton just give Nadia permission to use its trademark?

A.  One strategic option for any company whose trademarks have been used without authorization is to give permission, and also exercise some control, via a licensing agreement. 

Of course, Nadia didn't ask for permission.  And Louis Vuitton may or may not have been willing to grant it if she had, since its marks are constantly copied and copied again.  Also, while Nadia's stated intent was to criticize media attention to celebrities instead of tragedies, her profits from the t-shirts go to Divest for Darfur, an organization that opposes financial investment that ultimately funds genocide.  The presence of LV trademarks on the t-shirt could mistakenly be read to imply that Louis Vuitton had made investments that were helping to fund genocide -- not a message that the company would want broadcast, even in error.  In U.S. legal terms, LV could argue that Nadia was not only engaged in dilution of its well-known marks by blurring (basically overuse by non-owners) but also by tarnishment (negative association).

Q.  What about freedom of expression?

A.  Free speech is an important right, and one that every democratic society protects in different ways.  Intellectual property law establishes exclusive rights in specific expressions, but also attempts to maintain a balance between freedom of expression and creators' rights. 

In other words, at the same time that the law protects trademarks, it creates defenses for those who wish to use them in discussion (like the use of the name "Louis Vuitton" thoughout this post).  Different countries have different trademark laws and thus different defenses to unauthorized use.  In the U.S., the general standard is "fair use," including parody, while other jurisdictions have specific rules about what is or is not allowed in terms of expression.  To complicate matters even further, fair use of a trademark and fair use of copyrighted material are subject to different standards. 

In general, under U.S. law a visual artist is safer using a trademark to comment on or make fun of the trademark owner itself (parody) than to make other social statements (satire).  After all, it may be necessary to make limited use of a trademark to make a statement about its owner, but statements about other things can be made using other vocabulary.  Of course, whether or not something qualifies as parody or other protected speech may require a judicial decision.  Nadia writes that her goal was to make a statement about media coverage, not about Louis Vuitton. 

In her response to Louis Vuitton, Nadia also mentions Zbigniew Libera, a Polish artist who created LEGO concentration camp sets with blocks donated by the Danish company.  In the finished versions of the controversial work, Libera included a statement that his work was sponsored by LEGO.  The company vehemently denied knowlege of exactly what the artist had intended and filed a lawsuit that was later withdrawn.  The story is a cautionary tale for companies who choose to support artists -- whether by donating plastic blocks or the use of their designs -- but is ultimately quite different from Nadia's choice to act unbeknownst to Louis Vuitton. 

Q.  Do you think Paris Hilton will sue Nadia?

A.  Actually, I try not to think about Paris Hilton. 

But if I did, I might wonder whether she would assert a state law right of publicity claim against Nadia, much as she did against Hallmark.  If Vanna White can win her case against Samsung for posing a robot in a blonde wig on a game show set, then Paris could consider suing an artist for selling images of an African child with Hilton-style accessories.  Paris' case would be weaker here, however, since Nadia is criticizing the media for its coverage of Hilton's attention-seeking behavior and perhaps impliedly criticizing Hilton herself, rather than simply selling greeting cards or electronics. 

Q.  How can artists like Nadia avoid lawsuits by trademark holders?

A.  There's a lot of confusion out there as to what artists can and cannot do legally with corporate logos. Unfortunately, the law in this area is not entirely clear, and greater specificity would benefit both trademark holders and artists.  There are, however, some general principles.

For an independent artist, the safest option of all is not to use others' trademarks.  Any such use is a risk, and defending a lawsuit is time-consuming and expensive, even for an artist who ultimately wins.  (Now you know why so few lawyers have become great artists -- we're trained to think about worst-case scenarios.)

That being said, corporations are significant players in modern life, and as a society we need to be able to engage in commentary and criticism, whether that takes the form of op-eds or visual art.  A trademark is shorthand for a corporate entity itself.  The law thus recognizes and protects some critical or discursive use of trademarks. 

Before an artist uses a corporate trademark, she should think about whether or not her intention is to comment on the trademark holder -- and assess the risk according to the relevant national law.  If the use of someone else's trademark is just to make a visual joke or to sell the artist's own products, then that use is lawsuit bait, and the artist may very well be liable for damages.  And by the way, some companies are more determined than others when it comes to enforcing their rights. 

Of course, an artist's intent may be to transgress boudaries and challenge the law, but she should at least figure out where the line is before crossing it. 

Q.  And how should companies respond to unauthorized use of their trademarks by artists?

A.  As we've discussed, trademark holders are required to attempt to assert control over unauthorized uses, lest they lose their trademark rights entirely.  But for most holders of frequently copied trademarks, enforcement is a matter of allocating limited resources -- and managing public relations.  It's impossible to stop every counterfeit handbag seller on every street corner in the world, or to review every art school sketch to determine whether it's fair use.  Commercial sales in large multiples tend to make trademark lawyers see red; a one-off, transformative use may be worth only a shrug and a sigh. 

Q.  Who's going to win this case?

A.  That's a question for a Danish court -- although a settlement is still possible.  In the meantime, don't try this at home. 

Many thanks to Jenny Leugemors and Jayshree Mahtani, the first two to alert Counterfeit Chic to the story!

Via TorrentFreak.

April 24, 2008

It's Easy Being Green

Legally speaking, that is. 

Eco-friendly fashion has escaped the confines of shapeless, formless, colorless sack dresses and ugly earth sandals to become a major fashion trend, with cutting-edge retailers like Barney's New York shouting, "Don't Panic!  It's Organic!" and celebrities adding their names to labels that promise sustainable, recycled, natural, biodegradable, cruelty-free, fair trade fashion fixes.  With the text on some hang tags longer than an editorial in an alternative weekly and the British Advertising Standards Authority cracking down on unsustainable claims regarding "sustainable" cotton, Milwaukee Journal Sentinel reporter Lori Price asked your favorite law prof whether U.S. law offers any specific regulations regarding green clothing claims.

The short answer is no.  While agricultural products like cotton must meet federal standards in order to make specific claims, the law hasn't yet caught up with exactly what it means to be "green."  And while other industries like architecture and cosmetics are working to establish uniform standards, the fashion industry hasn't yet launched a similar effort.  As long as statements about clothing aren't actually false or misleading, a green label can refer to anything from raw materials to manufacturing to labor standards to, well, the color of the garment. 

If the eco-fashion trend lasts longer than the average trip down the runway, however -- something that would benefit manufacturers under pressure from cheap and allegedly eco-unfriendly overseas production -- the law is likely to have something to say about it.  After all, Kermit the Frog is always right in the end.

Thanks for the article, Lori! 

April 23, 2008

White Knight or Snow Job?

As eBay awaits decisions on both sides of the Atlantic regarding its potential liability as a forum for the sale of counterfeits, eBay France has published a 300-page white paper on content-filtering measures.  Does the online auctioneer expect to have to alter its policies, or is this just an attempt to guard against future complaints?  Time will tell. 

Via pMdM

April 22, 2008

The Mother of All Inventions

Katerina Plew claims to have had a less-than-uplifting experience with Victoria's Secret and its "Very Sexy 100-Way Strapless Convertible Bra."   According to a complaint filed yesterday in federal district court, the Long Island paralegal is the real inventor of the bra -- and Victoria's Secret has merely found 100 ways to infringe her patent.

Patent no. 189,672 from 1877While few fashion-related innovations qualify for patent protection, and the process of obtaining a patent is generally too slow and too expensive for those that do, women's foundation garments are among the categories of clothing for which protection has frequently been sought.  A successful new innerwear invention won't be "out" after one season, but will win customers -- and generate profits -- for years.  Thus over the past two centuries, the U.S. Patent Office has kept abreast of new form-fitting and figure-flattering technologies, from corsets to push-up bras.  Check out Theresa Riordan's illustrated history, Inventing Beauty, for more detail.   

If Plew's case goes to trial, Judge Laura Taylor Swain will have to navigate some tricky legal curves.  Counterfeit Chic suspects, however, that there will be no shortage of law clerks offering to review the evidence. 

In the meantime, some enterprising publisher has no doubt commissioned a future bestseller:  100 Ways to Unhook a Very Sexy Convertible Bra

Thanks to Andrew Wolinsky for the tip!

Barefoot Boy with Shoes On

If you seek proof that America has a corporate soul, look no further than our soles. 

In the current issue of New York Magazine, Adam Sternbergh attempts to convince readers that going barefoot is biomechanically better.  Still, the idea of unbranding our feet would run roughshod over perhaps the healthiest sector of the fashion industry.  Hence, a trompe-l'oeil adidas:

And a Louboutin "heel" that will knock your socks off: 

Lest these painted-on images step on trademark lawyers' wingtipped toes, however, the photos come with a disclaimer:  "Nice as they look, you can't buy them." 

April 21, 2008

Frenemies

Are you a Betty or a Veronica? 

Betty & Veronica Digest #183

In the opening story of the June 2008 Betty & Veronica Digest Magazine, the longtime rivals for Archie's affections become mutually unwilling mirror images.  Betty's defense?  "Don't look at me like that!  I just bought it, I didn't manufacture it!"  Even the end of the school day fails to bring relief, as the girls stomp off to a pep rally -- in identical cheerleader uniforms. 

It may look like a children's comic book, but for my USD $2.49, it's a pretty sophisticated commentary on originality and social conformity.  After all, true wisdom comes from recognizing that all of life is just a reiteration of high school

April 19, 2008

Can-Can Kicks

If you haven't yet visited Sole Desire: The Shoes of Christian Louboutin at the Museum at F.I.T., slip on your most stunning pair of Loubies immediately and grab a cab -- the exhibit closes today!  (What, you thought I was going to suggest walking?  In these shoes?)   

While you're there, don't miss the Guiness beer can heels from the 1993-94 fall/winter collection.  An eco-chic commentary on recycling, perhaps?  Or just a souvenir of a visit to the local pub?

Either way, like other repurposed fashion, they're also a potential target for claims of trademark infringement (though relevant statutes of limitations in this case would probably be long past).  Still, assuming the heels don't crush when worn, the transformation from trash to treasure is impressive.  And the idea that Louboutin might have found inspiration at the bottom of a pint of stout is an amusing thought.  Time to order another round...

Slainte!

Sinners or Saints?

From the "crack reproduction team" that brought you detailed instructions for making fake tickets to the Fall 2006 Heatherette runway show, here's a -- ahem! -- souvenir pass to this weekend's hottest music venue.  Which would be St. Patrick's Cathedral in New York, for the Pope's early-morning Saturday visit.  For details, and the rest of the story, visit the fabulous "flock of cultureholics" over at Animal.

As for the Papal mass at Yankee Stadium on Sunday, getting in without a ticket is going to take a minor miracle.  Try climbing a sycamore tree en route and seeing what happens. 

April 18, 2008

SuperCouture

In times past, a fashionista who contemplated attending a comicon would be tempted to duck into a phone both to change, lest her fellow style mavens suspect her secret identity as an associate of comic book geeks, science fiction fans, and other permanently adolescent males.  However unfair the stereotype -- most avid graphic novel readers have met a girl, and a growing number actually are girls -- hanging out with the comic crowd wasn't exactly a recipe for social success.

This season, however, none other than Vogue's Anna Wintour has declared the arrival of superhero chic.  The Met's Costume Institute Gala, co-chaired by Anna herself along with Giorgio Armani, George Clooney, and Julia Roberts, will take place among displays of high fashion influenced by comic book characters.  Mere mortals will no doubt flock to the exhibit for months afterward. 

The Met has, naturally, taken the opportunity to encourage donations by sending out preview literature from the exhibit, including this photo of a Bernhard Willhelm look from Spring 2006.  It's not clear exactly which nefarious ubervillain might have found a way to melt Superman's shield, but judging from the choice of trim underscoring the trademark, Counterfeit Chic suspects the Infringer, whose choice of weapon is the deadly pun ray.  Pugnacious parodies, Batman! 

Bernhard Willhelm Spring 2006

Of course, we need not worry about the Man of Steel.  He's more than capable of defending against crimes of fashion if necessary -- a good thing, since D.C. Comics' lawyers have had their hands full with other matters lately.

As for me, I'm off to the New York Comic Con's panel on "Comics, Concepts, and Copyrights" this afternoon at 2pm.  See you there!

April 17, 2008

Too Rich or Too Thin

France is considering a law that would ban the promotion of "excessive thinness" -- and L.A. Times reporter Geraldine Baum was on the scene in Paris to find out what that might mean for the "pro-ana" websites and fashion-related advertising that the bill's sponsors would like to eliminate. 

As your favorite law prof discussed with Geraldine (alas, via long-distance call rather than a trip to the City of Light), addressing eating disorders is an important and laudable goal.  After the death in 2006 of a young Brazilian model, Ana Carolina Reston, fashion week organizers in several major markets adopted minimum BMI requirements for the runway, and others expressed concern about the issue.  The proposed French law would be largely unenforceable -- but it would make a strong public statement. 

In the U.S., such legislation would very likely run afoul of First Amendment free speech protections.  Unless and until science establishes a direct connection between fashion photos and eating disorders, the law can't stop individuals from advocating skeletal standards of beauty.  The government, the fashion industry, and the mainstream media can, however, encourage girls to reject starvation chic. 

You, too, can make a difference.  Just a few Euros per week will buy this young woman a baguette.  And not the Fendi variety.

P.S.  Seriously concerned about your health or that of a friend?  Click here for a helpline and more information. 

Couture in Court 7

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

U.S. Polo Association's double horsemen logo

Ralph Lauren's Polo pony

In court, the beauty biz can get ugly:

All that glitters may not be gold:

And maybe it's all the printed flowers springing up this season, but textile manufacturers seem particularly allergic to copyright infringement:

Finally, the most frequently mentioned "couture in court" over the past week was probably not the subject of a lawsuit, but the outfit worn by Harry Potter author J.K. Rowling as the plaintiff and star witness in a copyright action.  The New York Times described her ensemble unusually as a "black dress and pinstriped suit," the New York Post as a brown pinstriped suit accessorized with a charm bracelet of the author's own literary characters, and Portfolio.com as a "simple grey pinstripe suit."  Maybe it's a trick of the light, or maybe Ms. Rowling has cast a confundus charm on the assembled reporters.  But if the evidence in the case is this conflicting, it's no wonder the judge has suggested that the parties settle. 

J.K. Rowling

Thanks to Amal Bouhabib for noticing the fashion law reportage!

April 16, 2008

Fendi To You, and You, and You...

The WSJ may have published the "it" bag's obituary earlier this year, but it seems that at least one recent version has been reincarnated -- in knockoff form. 

While Counterfeit Chic has yet to observe a Fendi To You Convertible colorblock bag on the street in New York, there were no fewer than four women carrying copies of this 2007 style on the platform of the No. 6 train this morning.  Maybe they didn't get the memo, or maybe they just couldn't resist a bit of color for spring. 

Original Fendi To You Convertible

Melie Bianco Multi Color Graphic clutch

While these bags didn't appear at a polite distance to be actual counterfeits bearing false Fendi logos, and came in several color variations, could they nevertheless provoke legal action? 

Given the widespread press coverage and recognizable design of the original, trade dress claims may very well be in order.  Fendi itself created a range of colorways, from candy-hued brights to mixed neutrals to black, so the knockoffs' color changes don't necessarily add up to a free pass.  And although the suspiciously similar example above doesn't actually convert from a clutch to a shoulder bag like the original does, its resemblance to the folded-over Fendi is hard to miss.  

In other words, if Fendi gets its clutches on whoever knocked off the Convertible clutch, the clever copyists may be less concerned about colorblocking than about the color of their parachutes. 

April 15, 2008

America's Favorite Oxymoron

Educational TV, of course -- although Counterfeit Chic is a close second!

Either one will offer an excuse to settle in on the sofa tomorrow evening and tune in to Illicit: The Dark Trade, a National Geographic documentary on counterfeiting based on the book by Foreign Policy Editor-in-Chief Moises Naim.  Check local listings for PBS channel and time. 

Judging from the preview clip -- and its stylized voiceover (where exactly do they find these guys?  does the script ever make them giggle at inappropriate moments?) -- high drama is in store. 

April 12, 2008

Li-Ning on Nike

Does this image look strangely familiar -- emphasis on the "strange"? 

In today's New York Times, columnist Joe Nocera notes that China has quickly mastered the intricacies of a market economy and cheap manufacturing, but its new-found enthusiam for brands hasn't yet translated into the ability to create them.  The Li-Ning sneaker is the eponymous brainchild of a famous Chinese gymnast, but its modified checkmark logo says "Nike."  Its English-language slogan, "Anything is Possible," sounds an awful lot like adidas' "Nothing is Impossible."  And while Li-Ning has snagged endorsements from Western sports figures including Shaquille O'Neal, the Shaq figure stamped on some styles apparently bears strong resemblance to the  Nike Air Jordan silhouette.

Du Bin for the New York Times

Like other domestic Chinese brands, Li-Ning would like to achieve a bit more respect (translation: higher price points) at home, and a share of the Western market as well.  But before Li-Ning secures shelf space in your local Foot Locker, Nocera argues, it will have to learn a bit more about the art of branding.  Not to mention trademark law.

How will China shed its image as a giant, nationwide factory for cheap, disposable goods and persuade foreign consumers to seek out the "Made in China" label?  Perhaps it's time to invoke the spirit of an individual who for a time was China's only house brand, Chairman Mao -- updated for the 21st century of course.

Chairman Mao

April 11, 2008

Stars and Stripes Forever

European fashionisti are buzzing about yesterday's European Court of Justice decision in favor of adidas and its famous 3-stripe logo. 

The German athletic apparel giant sued several competitors, including H&M, in Dutch court, alleging that their use of 2-stripe designs constituted trademark infringement.  Before ruling on the infringement question, the Dutch court asked the ECJ whether apparel designers' general need for access to such a basic design element -- stripes -- could be taken account in the infringement case. 

The ECJ's answer?  No.  Infringement is determined by whether there is likelihood of consumer confusion between the adidas mark and its competitors' versions.  If there is a clear connection in the public's mind between 3 stripes and adidas -- and there is -- arguments about the need to preserve general access to stripes are irrelevant.  The case will now go back to the Netherlands to allow the court to conduct a standard consumer confusion analysis. 

Wait!  Does that mean that no designer can ever again use 3 stripes, or 2, or 1 for that matter? 

Balenciaga Fall 2007No, not really.  Designers use stripes all the time without arousing adidas' anger -- take a look at this Balenciaga jacket from Fall 2007, for example.  So long as the stripes don't confuse the public as to whether the item is an adidas product, no problem.  And since adidas sells very few USD $2,000+ blazers in exclusive department stores, this isn't likely to become an issue.  As the company noted in a press release, "We do not seek to prevent the use of decoration, but the use of striped markings that confuse consumers, or cause them to make a link with our company and its famous trademark."

Presumably the military won't have to abandon sergeants' stripes, either.

Still, at least direct competitors in the sporting goods arena are likely to avoid striped logos going forward.  Could companies monopolize other basic design elements?

Don't panic yet.  A decade ago, Converse and the Dallas Cowboys famously sparred over a star, another basic design symbol that each was using as a trademark.  They both still own multiple registrations for a five-pointed star, albeit on different goods -- the football team doesn't seem to be in the shoe business.  And neither seems too concerned about YSL's spring accessories collection.

Converse (left) and Cowboys

YSL Spring 2008

The bottom line is that yes, a company's registration of a basic design as a trademark will create limitations on others' use of that symbol in ways that might be interpreted as indicative of the source of the goods.  But use of stripes or stars as mere decoration is fine unless consumers get confused. 

Most companies, moreover, don't select basic symbols standing alone as their logos.  Why?  Because it's too much work to create an association in the consumer's mind between parallel stripes or a single star and the source company.  It's much easier to just write your company name on the product and be done with it. 

The adidas case presents an interesting issue -- but not an immediate threat to the basic vocabulary of design.  Anyone attempting to imitate adidas' 3-stripe trademark, however, may find himself wearing prison stripes instead. 

P.S.  For more on law & stripes, click here.   And if you're a sneaker fan, don't miss the new book on Adi and Rudi Dassler and the fraternal feud that gave the world adidas and Puma.   

April 09, 2008

With Friends Like These...

When it comes to gift-giving, it's the thought that counts -- or at least a few recent Facebook apps seem to think so. 

Instead of buying an online friend a real-world gift, you can now send a virtual version guaranteed to fit perfectly, leave plenty of space in the closet, and never wear out.  My Dream Bags offers Prada, Vuitton, Jimmy Choo, and more, while Send Louis Vuitton (tagline:  You know your friends want it....) caters to the consumer whose brand loyalty is absolute. 

No, contrary to recent rumor, this is not a viral marketing campaign from Louis Vuitton.  And yes, it looks an awful lot like trademark dilution, with a bit of copyright infringement thrown in for good measure. 

Many thanks to Suni Sreepada for catching this one.  Facebook users, she's definitely an online friend worth having!

April 08, 2008

Upside Down Fake

And upside down in air were towers,

Tolling reminiscent bells....

--T.S. Eliot

You know the economy is slowing (don't say the "R" word!  much less the "D" word!) when even counterfeit merchandise goes on sale:

At least LikeFashion.com promises, "We guarantee what you see is what you get."  Of course, if that's the case, it may be worth looking a bit more closely:

Fake Louis Vuitton Saumur

But hey, if you wear it standing on your head, maybe nobody will notice that it's not the real deal....

Real Louis Vuitton Saumur

Thanks to Professor Beth Noveck (who is probably even now upgrading her email spam filters) for the tip!

April 07, 2008

Doggie Bag

Man's best friend may be his dog, but woman's constant companion is her handbag. 

While Louis Vuitton was feting Takashi Murakami and their wildly successful handbag collaboration at the Brooklyn Museum on Thursday, an artist at a very different gallery space across town was also taking advantage of the Vuitton vibe.  The Honey Space, a usually unattended "no-profit" gallery in a Chelsea warehouse, asked 5 curators to select artists to create works that meet the size and weight requirements of international carry-on luggage.  Perhaps inspired by Vuitton's nineteenth-century origins as a maker of upscale traveling cases, Meryl Smith combined leather, papier-mache, gold paint, and a (fake?) LV zipper to create Excessory Baggage.  Yes, models and actresses are still accessorizing with little dogs, but why try to smuggle your barking purse pup through security when you could settle for convenient faux taxidermy instead?

Meryl Smith, Excessory Baggage, 2008

The Honey Space's Object Salon was on display only March 26 - April 5, but how much was that doggie in the window?  A cool USD $3,000 -- pedigree included, of course.

Many thanks to my Fordham LL.M. student Vibeke Aagaard Sørensen and her dog for noticing Excessory Baggage while out for a walk! 

April 03, 2008

Louis Vuitton's Fake-Fighting Parody

"Life imitates art far more than art imitates life."

Oscar Wilde would've been ecstatic at the juxtaposition of life and art at the Brooklyn Museum earlier this evening -- and not just because it involved an abundance of luxury goods.  As guests arrived for the opening of an exhibit celebrating the art of Takashi Murakami and his collaboration with Marc Jacobs for Louis Vuitton, they were greeted by an outdoor scene more common on Canal Street:  logoed merchandise piled on tables or hung on metal pegs, graffiti-covered walls, stalls closed "by court order," and persistent vendors promising "best quality" and "best price."  The difference?  Those piles of LV Multicolore bags were real. 

Brooklyn gentrification gone Wilde!

Over the past 5 years, the Murakami/Vuitton partnership has produced some of the world's most copied handbags.  LV has responded with perhaps the world's most elaborate private anticounterfeiting operation, dedicating a team of 40 lawyers around the globe to pursuing its "zero tolerance policy" against copying.  Nowhere have LV's efforts been more extensive than in New York, where actions against landlords have established a beachhead against the counterfeiters who can seem more numerous than grains of sand. 

Of course, most of the 30,000+ raids that LV has conducted since 2003 have occured in relative silence.  Like other luxury companies, Louis Vuitton would rather draw attention to its products than to its issues with counterfeiting.  (Hence one of the most common questions directed to Counterfeit Chic:  If copying is illegal, why doesn't anyone do anything about it?  Answer:  They're trying.  Really!) 

New York's reputation as a counterfeit capital is hard to ignore, however.  Thus when Brooklyn Museum Director Arnold Lehman and LV Chairman and CEO Yves Carcelle discussed how to put a local spin on the © MURAKAMI exhibition, which had previously opened in L.A., their images of the city's vibrant street life inevitably turned to the dark side of our fabulous sidewalk agora:  fakes.  A popup installation and a bit of performance art turned out to be the perfect way to draw attention to the issue of what Lehman called "intellectual theft, Carcelle termed an "illness of the world," and Deputy Mayor Ed Skyler described as "a serious crime backed up by serious criminal enterprises."  Creative art used to express a commitment to legal protection of creative art -- now that's a New York moment.

While visitors to © MURAKAMI won't have the opportunity to buy a real LV handbag from a fake street vendor, there's nevertheless a seamless blend of art, commerce, and fashion inside the museum as well.  At the very heart of the exhibition, nestled between rooms of larger-than-life sculptures and giant painted canvases, is a tiny gem of a Louis Vuitton boutique.  Not only are all the newest versions of the Multicolore bag available here, but Murakami has also created a signed series of small art canvases in new "Monogramouflage" patterns.  At $6,000 each -- rising to $10,000 after the first batch sells out -- they're an artist's version of a diffusion line.  Or you can wait for the pattern to appear on LV handbags and other products, available at the museum as of June 1.  Another meeting of luxury and the street, a political reference, or a sly wink at the idea of overtly displayed "stealth wealth"?  Whatever the interpretation, the patterns are bound to be popular.

Takashi Murakami

Perhaps my favorite bit of the exhibit, though, wasn't the sculptures or even the guilt-free shopping, with a portion of the evening's proceeds earmarked for Homeland Security.  Instead, it was a moment of surprise as I stood in front of a glass case with an LV Murakami Cherry Blossom Retro handbag over my arm -- and realized that the flowers on my bag were smiling back at an exact duplicate.  OK, mine usually lives in a metal filing cabinet rather than a pristine display case, and its usual outings are to class to illustrate the idea of conceptual separability in copyright (the surface print is protected, the underlying design of the bag is not) rather than to elegant parties, but in that moment, it was wearable art.  And yes, it's real.

April 02, 2008

Annie Get Your Gun

If anything could provoke yet another round of hand-wringing anxiety in the cultivated bundle of neuroses that is Woody Allen, it's seeing his own face appear on a giant billboard for American Apparel -- without authorization.  Hence the USD $10 million lawsuit filed on Monday in federal district court in Manhattan, claiming that American Apparel violated Allen's rights of publicity by appropriating an image from his film Annie Hall.  (Complaint to follow.)

Lest anyone wonder exactly how Woody Allen dressed as a rabbi relates to a clothing company better known for its sexually provocative images and the alleged sexual behavior of its founder, the Forward last year contacted American Apparel to ask.  The response?  "Woody Allen is our spiritual leader."   

But of course.  And like all good spiritual leaders, he's just reminding the faithful to tithe.

On another note, it's interesting that while among young female celebrities a fashion label is the sideline du jour, and many even claim to have created their own designs, the boldest of boldfaced guys are being dragged unwillingly into the fashion fray.  Last week the "GC Exclusive by George Clooney" hoax, this week Woody Allen's faux endorsement.  Who's next? 

Many thanks to my Fordham law student Marissa Tillem for the tip!

UPDATE:  Complaint available here.

April 01, 2008

Introducing SCAFIDI, Ltd.

Please come and visit my new boutique, SCAFIDI, Ltd.! 

Over the years, many of you have kindly observed that I have more knowledge of fashion and style than the average law professor -- which may be damning with faint praise, but I'll take it as a compliment anyway. One shoe-loving lawyer and dear friend even suggested that I'd missed my calling as a fashion editor. 

Well, I've finally heeded your advice and decided to combine my love of law and passion for fashion in a single enterprise.  After the recent raid, there's space available on Canal Street -- and with the dollar going south, demand for cheap knockoffs of high quality, cutting-edge designer goods is certain to rise.  Yes, I've argued in favor of closing the loophole in U.S. law that allows design piracy -- but in the meantime, I'll be sailing the high seas of fashion with a bandana on my head and a parrot on my shoulder, plundering the best designs from famous fashion labels and struggling young designers alike. 

After all, as I explained to my financial partners, who better understands the peculiar legal distinctions between an illegal counterfeit and a legal knockoff, or protected trade dress and a vulnerable new innovation?  Or how to draft an airtight manufacturing agreement with a sweatshop owner while appearing to adhere to fair trade practices?  And as for those all-important "connections" in shipping and customs, I've been carrying around that vowel at the end of my family name forever (and hearing the usual comments) -- maybe it's time to put it to some use.

But all of that is just between us.  Today is the grand opening of Scafidi, Ltd.!  Come on down, have a drink, and do some shopping!  If you're lucky, I may just throw in some free counsel on the side.

Happy April Fools' Day!  (What, you were still wondering?)  

Many thanks to whatever distant, unknown relation put up the most elegantly lettered sign, and to to Grafica UniRC for uploading the photo to Flickr.