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June 30, 2008

Strike 2: eBay loses to LVMH

The gavel has fallen -- and hit online auctioneer eBay pretty hard.

In a much anticipated decision, a French court today ordered eBay to pay LVMH 38.6 million euros for allowing the sale of counterfeits on its site.  The award is allocated among several divisions of the luxury conglomerate, primarily LVMH and Christian Dior Couture, with smaller amounts to perfume brands Christian Dior, Givenchy, Guerlain, and Kenzo. 

Following on the heels of Hermes' victory against eBay in another French court earlier this month, the decision essentially shifts more of the responsibility for policing offerings to the auction site, which profits from each sale -- counterfeit or not.  After learning of its loss in court, eBay immediately announced its intention to appeal and went on a rhetorical offensive, stating, "Today's decisions are not about fighting counterfeiting. It's about LVMH's desire to protect commercial practices that exclude all competition." 

Obviously the French judges haven't bought eBay's argument -- but will home court advantage help?  Or will the long awaited U.S. decision in Tiffany v. eBay be strike 3 for the auction site?  Stay tuned.

(For background on the case, click here.) 

June 26, 2008

Burberry Orders Heelys to Heel

If you've ever been run over on the sidewalk by a kid who appears to be wearing an innocuous pair of sneakers -- no skateboards, rollerblades, or other wheeled menaces in sight -- then you've encountered Heelys.  The post-millennial generation, it seems, is too busy to stop and change gear in order to shift from walking to gliding.  Hence Heelys, the athletic shoes with an embedded wheel in the heel, allowing the wearer to simply shift his weight back, lift his toes, and roll.  (Or fall over backwards, but that's not really the idea.)

Heelys claims patent protection for the single wheel in the heel, manufacturing methods, and even the proper stance to take when heeling.  And it's not afraid to enforce those patents.

When it comes to others' IP rights, however, Heelys' freewheeling ways may be a bit off-balance.  In a recent complaint, the British luxury brand Burberry claims that Heelys has rolled over its trademark on the iconic Nova Check plaid.  And since one picture is worth a thousand puns, take a look at the evidence:

Might Heelys have simply gone mad for plaid and picked the wrong one?  Not likely, if the not-so-fine print on the box is any indication:

Checkmate.

June 25, 2008

Pineapples, Pirates, and a Pop-Up Store

Tired of knockoffs?  In search of the real thing?  Head down to Canal Street! 

No, really.  Loyal Counterfeit Chic readers may remember handbag designer Jennifer Baum Lagdameo of Ananas, who has seen her work copied by everyone from niche catalogs to mass market giants.  In fact, earlier this year she took a brief break from her booth at a trade show, only to see her Emily bag...

Ananas

...duplicated by a competing vendor.  Right down to the distinctive wooden rings. 

A few quick pics later and said competitor, who may or may not have violated trade show rules, is no longer offering Ananas knockoffs -- at least not in Jennifer's immediate vicinity.

This summer Ananas is planting its pineapples just down the street from New York's counterfeit central, with a pop-up store on Canal Street between Ludlow and Orchard.  So skip the back-alley boutiques offering Prado, Gooyar, and Channel -- and yes, the occasional Ananas copy -- and check out Ananas @ fifty-two (the street address).  Remember to pick up your favorite classic handbag or new eco-chic style soon -- the harvest ends on July 15. 

June 24, 2008

Penney Dropped

J.C. Penney's award-winning "Speed Dressing" ad, in which 2 teens practice getting their clothes back on quickly in anticipation of hooking up in the basement while Mom is upstairs, is apparently a fake.  And the straightlaced, Texas-based department store is not pleased. 

In today's Wall Street Journal, Cheryl Lu-Lien Tan quotes the chain's chief marketing officer calling the ad "obviously inappropriate" and adding, "We're very disappointed that our logo and brand position were used in that way."  J.C. Penney lit up the telephone lines to its ad agency, Saatchi & Saatchi, which in turn has blamed Epoch Films, the independent production company that submitted the ad in competition. 

If lawsuits ensue, the likely response will be that the commercial, which concludes with the legend "Today's the day to get away with it," is a parody of Penney's "Today's the day to..." campaign.  However, the widespread belief that the ad was real and its entry in a contest as such won't help the argument. 

 

Of course, it's also possible that the ad is genuine and that Penneys is trying to both pacify its conservative customer base and appear edgy to a younger generation.  In which case some twisted marketing mind really deserves an award. 

Via Gawker

June 22, 2008

Professorial Pilfering

A shocking confession from today's PostSecret:

Designer confession

Fashion design students would have no legal recourse, of course -- but is there no honor in the school's honor code?  (For a contrasting case from another creative medium, check out Shine v. Childs, 382 F.Supp.  2d. 602 (2005), in which a distinguished jury member visiting the Yale School of Architecture allegedly "borrowed" a student's design for an early version of the Freedom Tower at the WTC site, and the court refused to grant summary judgment.) 

Let's hope the professorial plagiarist at least pays with "A's." 

June 20, 2008

Colonization of the Lifeworld

In honor of its 75th anniversary, Lacoste appears to have released one of its famous crocs into the wild...

...at least according to the "New Meaningful Life of Famous Logos" series at Wallout.com

Caution:  Watch out for trademark lawyers...and their gently smiling jaws

June 16, 2008

Orphan Works and the Adoption Process

The Orphan Works Act has had a hard-knock life, much to the surprise of its original proponents.  After all, who wouldn't want an orphan to be adopted into a good home?

The rhetoric and intent behind H.R.5889/S.2913, an amendment to copyright law currently working its way through Congress, are simple -- some believe deceptively so.  Because copyright protection lasts for a long time (currently life of the author + 70 years), it can be hard to ascertain who owns the copyright in an older work or to locate the copyright holder.  This difficulty is likely to get worse in the future, since the U.S. in 1989 moved to an opt-out rather than an opt-in system -- in other words, copyright happens automatically.  It's no longer required to register your work with the Copyright Office or print a copyright notice on it (though both are good ideas), so there's no comprehensive record of who owns what with respect to copyright.  This creates problems for a subsequent creator who might want to turn an old short story into a play, restore and reissue a pre-code film, or use an ad from a defunct company on a T-shirt. 

The Orphan Works Act, originally proposed in 2006, tries to remedy this problem by limiting penalties for a copyright infringer who makes a "diligent effort" to find a work's owner before copying it but is unable to locate that copyright owner.  So far so good, right?

Not so fast.  While many agree that the basic idea has merit, the reality is somewhat more complicated.  After almost two decades of telling creators that they don't have to do anything to receive protection, is it fair to penalize them for not showing up in the Copyright Office's searchable records?  What's a "diligent effort" to find a copyright holder?  What's "reasonable compensation" if the copyright holder turns up later?  And -- perhaps most relevant to the apparel industry -- what about the difference between the kinds of works on which it's easy to display copyright notice (a book, for example) and the kinds of works that often don't bear the author's name (like a printed textile that's been cut and sewn into a garment)? 

Graphic artists, photographers, and textile designers have been among those most concerned about the potential effects of the bill, largely because their works are among those most likely to be mistaken for "orphans" when their parents are very much alive and well, thank you.  (It's a bit reminiscent of the controversy that erupted when Madonna decided to adopt an orphan from Malawi, only to learn that his father was still around.  The difference, of course, is that the boy was actually in an orphanage, while accidental orphan works might just be hanging around in public without nametags.) 

Given this ongoing debate, it's interesting that, according to a Textile World report last week, three textile trade associations have decided to support the legislation.  Why the new enthusiasm?

While neither Textile World nor the websites of the American Manufacturing Trade Action Coalition, the National Textile Association, or the Decorative Fabrics Association offer analysis of the decision, a closer look at the House version of the Orphan Works Act may provide an answer.  The following two provisions in the bill would limit its application to textile designs:

(1)  An "exclusion for fixations in or on useful articles."  The bill's limitations on liability don't apply to infringers who incorporate the copyrighted work into a useful article -- like printed fabric sewn into clothing -- and sell it to the public.  From a textile designer's perspective, this preserves the ability to enforce copyright against the Forever 21s of the world, a key strategy for fashion designers who can't protect their garments under U.S. law but can protect their prints.

(2) Visually searchable databases/effective date of legislation.  While the bill in general, if passed, would take effect on January 1, 2009, it would not apply to pictorial, graphic, and sculputural works (including textile designs) until either the Copyright Office certifies the availability of at least two visually searchable databases or January 1, 2013, whichever is earlier.  One of the concerns of textile designers is that it's harder to locate the original creator of a visual work than a verbal one.  This provision would allow a period of time to address that issue and ensure that a truly diligent effort to find the owner of a textile design could be successful. 

In other words, if these limitations remain in the final version, textile designers would be insulated from many of the legislation's immediate effects and would have little reason to oppose its passage.

Congress is rather preoccupied with elections, gas prices, a war, and so forth at the moment, but proponents of the Orphan Works Act may see this move within the textile industry as a sign that the sun will come out tomorrow.  Or at least next term. 

June 13, 2008

Brains v. Beauty

It's brains versus beauty in the competition for coveted H-1B visas -- and the brains are winning.  The annual number of visas issued to fashion models has dropped from 790 earlier this decade to a mere 349 in fiscal year 2007, as America's need for nerds has led to the hiring of more foreign high-tech workers and fewer sexy starvelings. 

U.S. Representative Anthony Weiner seeks to stem this beauty drain via the passage of H.R. 4080, which calls for a new nonimmigrant classification for fashion models "of distinguished merit and ability."  The predictably controversial bill would make available 1,000 visas in a new category associated with athletes and entertainers, creating more competition for U.S. models but arguably preventing some photoshoots from disappearing overseas.

Perhaps fashion models -- or at least the individuals who manage and hire them -- are pretty smart after all.

Who's the Most Copied of Them All?

New York Times fashion analyst Eric Wilson wrote a fabulous feature on Foley + Corinna, "the most knocked-off fashion label you have probably never heard of."  (Thanks for the quotes about why, Eric!)

Then, in a photo caption, the L.A. Times awarded Tory Burch the dubious honor of being "the most imitated American designer" -- a title echoed in the NYT's Critical Shopper column yesterday.

Meanwhile, a survey of British consumers by Davenport Lyons cites Louis Vuitton, Gucci, and Burberry as "the most frequently faked labels."

So, who's the fairest most copied of them all?  It all depends on how you ask the question.

June 10, 2008

Still More Baked Fakes

It's bathing suit season -- so if you must have cake, why not make sure it's too pretty to eat?

Counterfeit Chic has reported on plenty of baked fakes and DIY knockoffs, but this is the first recipe combining the two.  In theory, the two-minute CakesMadeEasy.com video will result in your own "Designer Knock Off" purse cake.  In practice, I'm imagining wall-to-wall crumbs and icing up to my elbows.  Still, it's the stuff of sweet dreams:

Legally speaking, yes, that quilting looks familiar -- but from the perspective of several different brands.  The style of the cake, moreover, is fairly generic.  So unless you add interlocking sugar C's or manage to spell out "Marc Jacobs" with your precision piping technique, you're free to rev up that oven.  (Note to SATC fans and denizens of small apartments:  Remove sweaters first.) 

June 08, 2008

The Logic of Logomania

Ever wonder why vintage clothing has very few external logos, and then starting around the 1970s everyone seemed to slap initials all over everything?  (Well, with at least one exception:  Bottega Veneta bucked the trend with its signature intrecciato leather and the sly motto, "When your own initials are enough.")

A new biography, Being Armani, offers a reason for logomania -- the very one that Counterfeit Chic has long surmised.  In a passage from the book, the Italian designer describes his decision in the early 1980s to use his initials on designs for the Emporio Armani line:

I liked the eagle just fine, but I wasn't sure about my monogram on it, since I had always been a little finicky about the excessive use of monograms in the world of fashion, for instance, the craze for initials everywhere, from belt buckles to overcoat linings, and then taking them from the lining to the exterior, using it as a decoration on the clothing itself.  The problem was the growing phenomenon of copies, which were increasingly common.  The imitators were really good at it.  Sometimes I fall for it myself, and I would really have to look closely to see whether something was by me.  We needed a logo, even if it did not constitute a foolproof deterrent. 

In other words, absent protection for actual clothing and accessory designs, a clever lawyer somewhere realized that liberally deployed trademarks could serve as a stopgap measure, and the word spread.  Even Giorgio Armani, the most elegant of minimalists but also a clever businessman, succumbed to the lure of trademark protection. 

Of course, there are other reasons for using prominently displayed logos, including social signaling and aesthetic preference.  And emerging designers whose logos are not particularly recognizable or valuable can't deter copyists whose target is their designs, not their trademarks.  Still, it seems that logomania is what you get when the law has a lacuna -- and fashion designers cede their authority to trademark lawyers.

June 04, 2008

Party Time

Summer's hottest trend is here!  No, it's not gladiator sandals or splashes of superhero-worthy primary color -- it's lawsuits claiming 3rd-party liability for copyright and trademark infringement. 

Today a French court ordered eBay to pay Hermes 20,000 euros after the internet auction site allowed a user to sell 3 Hermes handbags, 2 of which turned out to be counterfeit.  The court's decision is also supposed to appear on eBay's French homepage, but no sign of it yet.  The site does have an extensive anti-counterfeiting page, though.  (Thanks to Counterfeit Chic reader Deb Mason for the tip!)

The ruling in favor of Hermes could be just the tip of the iceberg for eBay's French operations.  20,000 euros may cover a couple of basic Birkins, but, in a separate pending case against eBay, luxury giant LVMH has demanded damages of €20 million.  According to Le Monde, a decision is due by the end of the month.

Meanwhile, on this side of the Atlantic, the U.S. Supreme Court has let stand a 9th Circuit decision in Perfect 10 v. Visa, absolving the credit card company of liability for facilitating sales of infringing goods.  As WWD's Liza Casabona notes, however, questions of contributory and vicarious liability will continue to occupy the legal landscape, with a decision in Tiffany v. eBay still undecided.  (Thanks for the quote, Liza!)

Seems that the lawyers pursuing 3rd-party liability claims on behalf of their fashion clients have come up with not only a legal strategy, but a lifestyle mantra:  After the law shows up at one party, move on to the next.  Not a bad way to spend a hot summer night.

 

June 03, 2008

Still More Stripes

If your dazzled retinas keep generating afterimages of adidas' 3-stripe trademark and the USD $305m verdict against Payless, read more from Mark Albright of the St. Petersburg Times (thanks for the quote!) or listen in on my conversation about the case with Scott Drake of the Legal Broadcasting Network.  Trust me -- his radio voice alone is worth a click.

Or, for more fun with stripes, stare at a fixed point on the image below for 30 seconds and then look at a blank wall or page.  Same design, new colors?  Congratulations -- you could have a future in the Payless design department.

June 02, 2008

Sex and the City: Sloppy Seconds

After a much-hyped opening weekend, the tally is in on the Sex and the City movie: 

  • mostly mediocre reviews,
  • flocks of fans who couldn't care less about the mediocre reviews,
  • twice the expected box office take, and
  • Hollywood execs perennially perplexed at the presence of pink purchasing power. 

Whether or not, as a certain familiar opening voiceover suggests, "People come to New York looking for the two L's -- love and labels," Counterfeit Chic was amused by the followup metaphor:  "Turns out a knockoff is not as easy to spot when it comes to love."  This chick flick is nothing if not genuinely brand-friendly, the cameo role of an unlabeled vintage suit notwithstanding.  SATC even offers (repeatedly) one of my usual bits of advice for the aspiring fashionista who simply must have a designer label but can't afford to buy it -- namely, rent

Of course, any lucrative transition to the big screen gives rise to the suspicion that the creators of the sharp, observant original show have sold out to the masses.  Nostalgia for Meet Me in Saint Louis?  An apartment hunt based on following a white guy with a baby -- without irony?  Still, SATC includes one truly authentic moment, in which the writers' real attitude shines through.  After ordering a round of cosmopolitans, one of the gang of four wonders aloud why they ever stopped drinking the show's signature pink cocktail.  The answer?  "Because everyone else started." 

P.S.  Speaking of lack of originality, it seems that Sarah Jessica Parker's borrowed finery for the NYC premiere had already taken a turn on the red carpet -- to the dismay of the actress.  Despite the constant comparisons of the ready-to-wear era, enhanced by internet immediacy ("Who Wore It Best?" "Fashion Faceoff"), style-savvy stars still want to project a unique image.  In this case, however, there's something appropriate about a TV trendsetter celebrating her movie adaptation in a second-time-around gown. 

Sarah Jessica Parker (left) in Nina Ricci by Olivier Theyskens; Lauren Santo Domingo with the designer.