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August 28, 2008

All's Well That Ends Well: LV v. Nadia Plesner

Whatever happened to Nadia Plesner, the young Danish artist who decided to design for Darfur -- using Louis Vuitton trademarks?

 Nadia's design (left) and the LV Audra bag

 

As Counterfeit Chic readers may recall, LV objected to the unauthorized use, and a brief legal skirmish ensued.   Earlier this summer Nadia's website displayed a protest version of the design:


Now, however, Nadia has established a multi-purpose charitable foundation, whose website makes no overt mention of LV but merely thanks readers for "all the wonderful support of my first Simple Living campaign and the lawsuit."  The original little Sudanese child no longer carries a handbag along with her pink-clad cainine accessory, but she does have a new friend -- "Miss Size Zero 2008." 

 

And they all lived happily ever after.  Assuming, of course, that the owner of the "Little Miss" family of trademarks doesn't mind Nadia's latest T-shirt/poster campaign:

 

August 26, 2008

Fire the Speechwriter AND the Stylist

 

Please tell me that one of the most intelligent and powerful women in America, a woman who aspired to be Commander in Chief, did not just thank her "sisterhood of the traveling pantsuits."  In front of the delegates to the Democratic National Convention and a national television audience.  While wearing bright orange.

Barak, if you're elected, please appoint Hillary Clinton to the Supreme Court.  Not only because she'd be a fabulous justice, but also because it's very hard to turn a long black robe into a fashion faux pas. 

Or a style-related pun that sets even Counterfeit Chic's teeth on edge.  

 

Speeding Ticket for Fast Fashion

...I see that the fashion wears out more apparel than the man.

--William Shakespeare

Even as lovers of cheap chic on this side of the pond eagerly await the arrival of the U.K.'s Topshop in New York, the House of Lords has officially frowned upon fast fashion.  In its report on "Waste Reduction," the Science and Technology Committee noted:

This problem [of a throwaway society] is particularly apparent within the textile industry, where the culture of "fast fashion" encourages consumers to dispose of clothes which have only been worn a few times in favour of new, cheap garments which themselves will also go out of fashion and be discarded within a matter of months. Mr Paul Ozanne, National Recycling Co-ordinator at the Salvation Army Trading Company commented that these garments "are quick to produce; the turnover is very fast; and the length of time they are able to be worn is very short.". Furthermore, the rapid production of cheap clothes involves the use of low quality materials in garments of high complexity, which makes it difficult to capture any value from the material at the end of the garments' lives. Mr Alan Wheeler, National Liaison Manager at the Textile Recycling Association, commented that "fast fashion" items were "harder to re-use" and that there was "not much thought about how recyclable an item is at the end of its useful life."

The Daily Mail immediately took up the debate, pitting its own style expert (anti-fast fashion) against the editor of British Vogue (pro-cheap chic).  Interestingly, none of the discussion -- in Parliament, in the newspaper, or on Jezebel, which followed with another analysis -- brought up the issue that has caused Counterfeit Chic to applaud the growing slow fashion movement:  namely, that fast fashion is fraught with fakes.  (Yes, even Topshop goes a bit to far with its designer "inspirations" on occasion.)  Given that not only counterfeit labels and logos but also unauthorized copies of fashion designs themselves are illegal in U.K., surely initiatives that not only promote sustainability but reduce lawbreaking would be welcome.

The committee report itself was a bit vague on legal solutions, though it did applaud a private initiative by Marks & Spencer that rewarded donations of clothing to Oxfam with M&S gift certificates.  Still, it seems that most of the poorly constructed, last season fast fashion out there is likely to end its short life in a landfill alongside its own plastic bags. 

Or on the floor in the back of the closet. 

Thanks to the ever-alert Larry Abraham for the tip!

P.S. On the same day that the House of Lords report appeared, the New York Times offered its own subtle indictment of fast fashion.  Worse than the exploitation of child labor, worse than the destruction of the environment, worse even than the violation of intellectual property law, it's the dreaded whisper of one's own internal fashion critic:

You can rationalize blowing your rent on Gucci’s $1,900 swinging fringed boots — by telling yourself you’ll spend only $89 for Zara’s copy of Gucci’s mini peasant dress. But you would know immediately that your cheap-jack Doctor Zhivago outfit wasn’t working, and then what?

August 25, 2008

Swim Naked

If hosting the Olympics were an event in itself, China would certainly have won gold.  The stories leading up to Beijing were all about pollution, oppression, and politics; the news during the games was about the incredible spectacle and record-breaking feats of athleticism -- with just a few controversies mixed in to keep things interesting.

Speedo LZR RacerBut enough of allegedly underage gymnasts, disputed decisions, doping disqualifications, split-second timing devices, and lip-synching performers.  What about the Olympic dress codes? 

Too Buoyant?  After swimmers wearing Speedo's LZR Racer repeatedly toppled world records, some coaches and officials charged that the suit offered an unfair advantage and might run afoul of rules that bar adding buoyancy.  The Italian team coach even referred to the Speedo as "technological doping" -- at least until one of his swimmers won gold while otherwise attired. 

Too Bare?  While past international gymnastics competitions have seen point deductions for leotards that were a bit too revealing, it was women's beach volleyball -- and NBC's incessant un-coverage of it -- that caused controversy.  Apparently the rules that put babes in bikinis and guys in shorts and tank tops were established almost a decade ago, but eyebrows (and television ratings) are still raised. 

Olympic beach volleyball champions Misty May and Kerri WalshThe official regulations of the Federation International de Volleyball are somewhat flexible and gender neutral, allowing either bathing suits or shorts with tank tops optional.  However, they defer to specific tournament regulations -- and the extensive Olympic rules apparently specify the skimpiest possible costume for women and the most modest for men (shirts required).  It's not clear what the athletes themselves would prefer, but how many guys wear shirts on the beach?

Too familiar?  And then there was the shopping.  Gymnast Shawn Johnson apparently planned to celebrate her Olympic victories with a trip to Beijing's notorious Silk Market, whence a false prophet had whispered that True Religion jeans were available for a mere USD $12.  Sure -- and that medal is solid, 24-karat gold.

Tourists, too, were lured with not only illegal labels but also enthusiastic adaptations, like these "I heart China" T-shirts snapped by lee on the road.  (Note to New York:  We still love you, too.)

 

No doubt London, which has the unenviable role of following a championship Chinese performance, will have its own clothing-related controversies in 2012.  Of course, the IOC could always simplify matters by reverting to the dress code of the original Olympics -- laurel wreaths optional.

 

August 17, 2008

Gone Fishin'

Counterfeit Chic will return on Monday, August 25.  Unless something irresistably interesting occurs in the meantime.
 
 
 
Stay cool! 

August 13, 2008

Why Designers Hate Lawyers: Roth's Retrenchment

Christian Francis Roth's parody Accost dressClient to lawyer:  Don't you ever say anything but no?

Lawyer:  No.

Bad news for those of you already queuing up to buy Christian Francis Roth's preppy parody --  it's been withdrawn from production at the advice of counsel. 

The good news from the master of clever creativity himself, however, is that this is only a temporary silence.  Here's his message to Counterfeit Chic: 

I have to say, I was impressed with your spot on interpretation of my parody polo "Accost" dress. I was hoping to be able to change the icons enough to produce this item for Spring 2009 in store, but my lawyers tell me that even with further changes to the current artwork, it would be a serious roll of the dice. That being said, I'm going to have to create my own preppy looking animals and let them battle it out!

As the whales, griffins, and other potential contenders for greatness gird their khaki-clad loins with colorful canvas belts and  prepare for battle, one victory is assured:  that of Christian Francis Roth himself, whose humorous imagination knows no bounds.  Especially not those pesky legal ones.

Look for the Francis line for Spring '09! 

More Auction Action: eBay defeats L’Oréal

In a decision that crossed the American/European divide in the eBay counterfeit controversy, a Belgian court yesterday held that eBay was not liable to L’Oréal’s Lancôme (decision here).  Of course, L’Oréal has other cases against eBay pending in France, Germany, Spain, and the U.K as well. 

So far that makes 3 victories for the luxury labels irked by eBay (Hermès and LVMH in France; Rolex in Germany) and 2 for the auction giant (Tiffany in the U.S.; L’Oréal in Belgium), though both losing plaintiffs plan to appeal. 

And in the meantime, Lancôme probably has something to cover that black eye.

Related posts:  Tiffany v. eBay 2:  The Appeal, Euros and Scents: More on LVMH v. eBay, Strike 2: eBay loses to LVMH, Party TimeDefendant du Jour

August 11, 2008

Tiffany v. eBay 2: The Appeal

If Dad says no, ask Mom.  And if the Federal District Court for the Southern District of New York says no, ask the 2nd Circuit. 

As expected, Tiffany has filed a notice of appeal of its loss last month to eBay in a lawsuit alleging, among other things, that eBay should bear more responsibility for shutting down hundreds of thousands of listings for counterfeit Tiffany silver jewelry.  The auction site's response, with which Judge Sullivan agreed, was essentially, "Hey, we're a marketplace.  And we never even see the stuff.  How do we know what's fake and what's not?  If Tiffany tells us that a specific item is counterfeit, we'll stop that auction, but that's all we can do."  In legal terms, eBay cannot be held liable for contributory infringement of Tiffany's trademark without having specific knowledge that particular items are counterfeit -- as opposed to general knowledge that a large percentage of the listings are for fakes -- and then refusing to shut down those counterfeit auctions. 

Tiffany obviously didn't buy eBay's argument.  After all, eBay takes a cut of every sale, whether or not it's the real deal.  Talk about an ambiguous incentive.  Tiffany added in essence that eBay should look for red flags (like listings of multiples of the same item) and use the same common sense that buyers do when trying to figure out whether an item is genuine. 

From my perspective, eBay may have won a bit of a Pyrrhic victory.  Yes, it has avoided the legal responsibility and cost of policing Tiffany's (and others') trademarks, at least for now, but at the expense of being identified as a site where counterfeits may outnumber the real thing and the official policy is "caveat emptor."  Its wise publicity machine immediately leapt into action with noises about cooperating with brand owners in the fight against fakes -- but a Google search for "eBay" and "counterfeit" just turned up 1.8 million hits.  And half of us can't even spell "counterfeit."  (Remind me of that the next time I'm naming a website....)

In other words, eBay may be selling fake Tiffany silver, but the auction site is the one with the tarnished name.

 

So what's a fashionista looking for genuine goods at less than full retail to do?  (Hint:  The answer is not to email me.  I love you guys, I'm flattered, and I'm happy to share tips when I can -- but I don't authenticate auction listings.)  Instead, you can hope for a clearance sale, rent rather than buy, or visit an auction site that does guarantee authenticity.  Sure, eBay is great for unloading that tacky trinket your ex won for you at a street fair.  I've bought and sold there a couple of times myself.  But when it comes to luxury labels, why settle for uncertainty when you could score a certified preowned handbag instead? 

Related posts:  Euros and Scents: More on LVMH v. eBay, Strike 2: eBay loses to LVMH, Party TimeDefendant du Jour

August 09, 2008

ABA IP Section Supports Fashion Protection

Pinstripes and classic tailoring were de rigeur this morning at the American Bar Association's annual meeting, where the Section of Intellectual Property Law convened to consider competing resolutions (2008 Council #1-A and 1-B) on extending intellectual property protection to fashion design.  After giving Robert's Rules of Order a workout, the section members voted to adopt the following amended version of 1-A: 

RESOLVED, that the Section of Intellectual Property Law, believing that there is sufficient need for greater intellectual property protection than is now available for fashion designs, supports, in principle, enactment of federal legislation to provide a new limited copyright-like protection for such designs.

Proposed resolution 1-B was sent back to committee as amended

Washington, are you listening?   

Branded Beef on the Hoof: The Nike Burger

When  Vice magazine asked Olle Hemmendorff for his take on Nike Air Max 90s, he must've been hungry:

 

Hopefully the finished product isn't as tough as shoe leather!

Via A Hamburger Today.

August 08, 2008

Olympic Ambiguity

8-8-08 -- a most auspicious day for the start of the Olympics!  And after years of preparation, including everything from cleaning the air to washing out the mouths of dissidents, China has also concluded that "Selling fakes MAY constitute crime!" 

 by Click Cluck

Hey, it's a start.  

Many thanks to Click Cluck for uploading the photo on Flickr!  And check out the other sign translations in the set, ranging from amusing to incoherent.  

Good luck, Olympians!   

August 07, 2008

Roth's Risky Business

Francis by Christian Francis Roth polo dress detail

If nothing unites like a common enemy, then polo shirt titans Lacoste and Ralph Lauren may soon be the best of friends.  Or at least temporary allies.

Today's WWD celebrates the return of early 90s favorite Christian Frances Roth to the fashion scene.  His style incorporates wit and whimsy in the tradition of Elsa Schiaparelli's surrealism or Franco Moschino's clever spoofs on fashion classics.  Roth himself has a longstanding penchant for incorporating brand images, most famously the Crayola crayon label, into his work. 

This time around Roth has imagined a blue bloodbath, pitting preppy icons against one another in a battle to the death.  The Lacoste alligator grips the Ralph Lauren polo pony in its jaws, while the polo player's mallet is poised to deliver a crushing blow to the reptile's skull.  No doubt similar metaphorical social struggles are occurring on Nantucket and Martha's Vineyard at this very moment. Francis by Christian Francis Roth polo dress

If history is any guide, however, neither Lacoste nor Ralph Lauren may be particularly appreciative of this daring duel.  Back in the 80s, at the height of preppy predominance, a parodist by the name of Barry Gottlieb, a.k.a. Mad Dog, featured a dead alligator and a polo pony dragging a fallen rider on separate shirts. Both designs resulted in lawsuits and the withdrawal of the garments from sale. 

Of course, parody cases have a reputation for being unpredictable, and Roth may well argue that this standout from the "Twill Seekers" group of his spring "Gangs of New York" collection is a humorous commentary on the bigger brands and their ongoing competition for the allegiance of the patchwork madras set.  Alternatively, both Lacoste and Ralph Lauren could conclude that a legal challenge and the accompanying publicity are not worthwhile.

Roth would be wise, however, to ensure that in the event of a lawsuit or two his financial backers are possessed of that most stylish attribute of all:  deep pockets. 


 

August 06, 2008

A Family Affair: Disney's Little Miss-step?

Walt Disney is a family corporation:  family entertainment, family vacations, family fun.  And now, according to one trademark holder, Disney has even managed to infringe an entire family of trademarks, the "Little Miss" marks.

Yes, trademarks have families, too -- or they can, if one trademark holder owns a series of marks with a common element or "surname."  Think McDonald's, with it's "Mc" marks, like  Egg McMuffin, Chicken McNuggets, and the Ronald McDonald clown.  If consumers recognize the common element itself as a trademark when it's combined with other elements, then the holder of the family of marks can prevent other unauthorized combinations that would cause confusion, even if they're very different from any of the marks already in the family.  Thus McDonald's has successfully challenged McBagel, McSleep (budget hotels), McTeddy (teddy bears), and McClaim (legal services -- really).  (McDonald's is presumably unconcerned about Professor J. Thomas McCarthy's extremely influential treatise, McCarthy on Trademarks and Unfair Competition, which deals with families of marks in section 23:61.  Just don't call it McTrademark.)

The "Little Miss" family of marks at issue in the current case is composed of the younger sisters of the "Mr. Men" children's book characters, created by Roger Hargreaves.  The original "Mr. Tickle" and his many brethren have appeared in over 130 books since 1971, while "Little Miss Bossy" and her sisters are featured in more than 75.  The characters have also appeared on TV and on a dizzying range of product tie-ins.

Among the licensed "Little Miss" products are T-shirts, which since 2006 have been sold in some 5,000 U.S. locations, including -- wait for it -- Disneyland.   Which makes it all the more interesting that Disney stores are now carrying a line of "Little Miss Disney" T-shirts featuring the company's own characters, including Daisy Duck as "Little Miss Bossy." 

 Little Miss T's (top) and Disney versions (bottom)

Although only "Mr Men Little Miss" is currently a registered mark in the U.S., some 40 other character-specific federal registrations are pending, and plaintiff THOIP has also invoked state common law in its complaint.   The Hon. Shira Sheindlin of the Southern District of New York -- who shall emphatically not be referred to as "Little Miss Judge" -- will preside over the determination of whether or not the staunchly pro-protection Disney has violated its own trademark family values by ripping off the Little Misses. 

And in the meantime, Counterfeit Chic suggests revenge in the form of a "Little Miss Copycat" -- with or without mouse ears.

August 05, 2008

Caught in the Web

I am a city girl.  Always have been.  While I have fond memories of time spent on my grandparents' farm, and I love wandering through botanical gardens, you won't find me trekking through distant jungles in practical footwear.  Hobbes famously noted that human life in the state of nature is "solitary, poor, nasty, brutish, and short" -- and, as far as I'm concerned, nature itself is a pretty dangerous place.  Just turn on the Discovery Channel sometime. 

Clothing designs based on the natural world are another matter.  Where would we be without floral prints and gossamer weaving?  Or metaphors of caterpillars transformed into social butterflies? 

Still, the clothing industry itself can be a fairly Hobbesian place, given the lack of intellectual property laws to regulate it (at least in the U.S.).  Consider a fabulous little black dress that Narciso Rodriguez sent down the runway last February.  Photos were of course immediately available on the web, and Charlize Theron was recently snapped wearing it.  The dress isn't in stores yet -- quality fabric sourcing and manufacturing take time -- but a copy by Privee is already for sale online

The name of the knockoff?  "Spider Web."

 Charlize Theron in Narciso Rodriguez (left) and Privee copy (right)

Via InTouch

Related posts:  Washington Fashion Week: The Design Piracy Prohibition Act, Washington Fahsion Week 2, and Karmic Relief 

August 04, 2008

Altered Advertising: J.Crew's Fun with Photoshop

When the clever website Photoshop Disasters caught J.Crew posting both "before" (left) and "after" pictures in its online store, the editor wasn't at all judgmental about the photo alterations -- just amused by the accidental juxtaposition of the images.  After all, everbody knows that fashion images are faked, from the clothespins down the spine of a designer dress in Funny Face to the wonders of retouching, airbrushing, and computer manipulation.  So what's the problem with thinner thighs via virtual custom tailoring?

 

Perhaps nothing -- unless such alterations materially misrepresent the product and could be considered false advertising.  One of the most famous such cases dates back to before your favorite law prof was born and involved food, not fashion.  Campbell's Chicken and Stars soup, to be exact.  According to an article in Advertising Age (unfortunately not linkable), the little pasta stars refused to show their faces on camera, sinking to the bottom of the bowl instead.  The ad agency solved the problem by adding clear marbles and bits of glass to the bottom of the bowl, and voila!  A perfect picture.  Until a competitor complained to the Federal Trade Commission and a group of law students calling themselves Students Opposed to Unfair Practices (yes, SOUP) got steamed.  Although the case was ultimately settled, it introduced the concept of corrective advertising and helped lead to the industry's establishment of a National Advertising Review Board.

So, do altered images like the one on the right risk the wrath of the FTC under 15 USC 45(a)(1), which bars deceptive pratices affecting commerce?  Probably not, unless the government decides that consumers are harmed.  Since clothing fits everyone differently, and trousers that are baggy on a skeletal model might be, well, close-fitting on the rest of us, J.Crew could even argue that its Photoshopping presents a more realistic picture of the trousers. 

Still, J.Crew's web troubles -- including order mixups that have apparently prompted a coupon offer as well as an apology -- offer a revealing look at the reality behind the ad images.  As well as confirmation that even models' thighs aren't that skinny.

 J.Crew bikini before (left) and after Photoshop

Silver Lining: Knockoffs K.O. Crocs

 

Knockoffs can cause serious harm to the businesses of original, creative designers -- but it's an ill wind that blows no good. 

Crocs (CROX) can blame the 94% drop in its stock price from a 52-week high of $75.21 to a low of $4.26 at least in part on illicit imitation.  Bloomberg reports:

 

The widespread availability of both Crocs -- with their multiple holes and pliable texture -- and their imitators is one of the company's biggest problems, according to [retail analyst Keri] Spanbauer.

``It's not only that Crocs are everywhere,'' she said, ``the knock-offs are everywhere.''

While Crocs are protected by both utility and design patents, which the company has actively enforced, it appears that the copyists are winning by dint of sheer volume.   

Could this news mean the demise of the company that induced countless Americans to appear in public wearing brightly colored, synthetic clown shoes?  Does it portend a return to reasonably elegant, adult footwear?  Will knockoffs kill Crocs?

As of this writing, the stock is selling at $4.31, a turning trendlet but nothing dispositive.

 

 

Crocs Beach style in silver

 


As we wait for a conclusive market correction, here's a quick look at the positions of our Commander in Chief and those who want his job:

Bush wears Crocs.

McCain admires Crocs.

Obama "will take away your Crocs."  

Counterfeit Chic urges you to vote accordingly. 

August 01, 2008

LV, Sony Strike a Chord

After hitting several false notes, Louis Vuitton and Sony BMG have reached accord on the issue of musicians who have "borrowed" LV's trademarks to add a bit of glamour to their own products.

Sony will pay LV the additional €97,000 still outstanding from French judgments involving Brittney Spears and rap artist Da Brat, as well as an undisclosed sum in compensation for Ruben Studdard's unauthorized use of LV's marks on a CD.  (Remember Ruben?  American Idol season 2?  And did you buy his "The Return" CD and open it to find the signature LV toile inside?  Didn't think so -- which may be part of the reason why the amount of the settlement had not been made public.) 

Perhaps more importantly, Sony has promised to use "best efforts to educate its various record labels as to the Louis Vuitton intellectual property."  In other words, Sony has agreed to take some responsibility for reminding artists that wearing Louis is one thing, but copying its trademarks on CDs, videos, and other merchandise is quite another.

But why all the discord in the first place?  Don't designers and luxury labels actively court celebrity endorsements and even pay famous folks to wear their brands?  Yes and yes.  However, that doesn't mean that Louis Vuitton is ready to reverse the equation and lend its own endorsement to Brittney's latest video or Ruben's CD -- especially without even being aware of it. 

For more on harmonious brand management and the LV/Sony settlement, check out Matthew Lynch's article in today's WWD, complete with a gentle admonition to Kanye West, the self-styled "Louis Vuitton Don."  And thanks for the quotes, Matt!