« September 2008 | Main | November 2008 »

October 31, 2008

Sarah's Other Shopping Spree

Your scary Halloween costume checklist:

  • Beehive hairdo
  • Rimless glasses
  • Lipstick (wouldn't want to be mistaken for a ... oh, never mind)
  • Designer business suit (red, black, white or combination thereof)
  • Pumps (see first two color choices above)
  • Counterfeit accessory (optional)

Eric Wilson at the New York Times started the Sarah Palin knockoff watch with his observation last week that she had arrived at the Alaska governor's mansion the first time wearing "what appeared to be a knockoff Burberry scarf."  Now her youngest daughter has been photographed carrying (Mommy's?) Louis Vuitton bag, also alleged to be fake. 


Even if the luxury bag turns out to be genuine -- perhaps part of that $150K shopping spree -- it doesn't exactly scream all-American hockey mom. 

And if the scarf and bag are indeed counterfeit, Sarah may have to face a few questions about the source of the illegal merchandise and her take on fakes.  Not to mention their association with child labor, organized crime, and, yes, in some cases even funding for terrorism.  (Perhaps you've received some of the spam suggesting that Obama is a Muslim, associates with terrorists, or both.  Imagine what those guys would be writing if one of his daughters instead of one of Sarah's had been spotted with a counterfeit handbag.  Talk about scary.)

Now, back to that brain-eating zombie costume...

Thanks to my fabulous Fordham law student Andrew Wolinsky for the tip!

October 30, 2008

Juicy's Familiar Details

Juicy Couture is the only direct brand in Liz Claiborne's painfully culled herd that actually recorded an increase in same-store sales during the third quarter.  But what exactly is driving that increase?  From the sound of things, it may not be creativity -- unless you count creative pilfering.

Suspicions were raised with the accusation that Juicy had infringed Alex & Ani's patented bangle design.  At a substantially higher price.

Then New York Times "Critical Shopper" Cintra Wilson paid a visit to a Juicy boutique.  From half a block away, she noted that "Juicy's window dressers have been worshiping at the altar of Simon Doonan, the creative director at Barneys New York."  Inside the store, the brand's imitative strategy became even more apparent, with designs resembling those of "Tory Burch, whose influence is felt here nearly to the point of plagiarism." 

And now clever Counterfeit Chic reader Amanda K wonders whether anyone else has noticed the similarity between Coldplay's new album cover and several Juicy Couture products.  As she puts it, "I love Juicy, and I love Coldplay, but this is a little weird." 

 

Or maybe not so weird, if the overall "shutdown in discretionary spending" at Liz is code for eliminating expenditures on actual design. 

October 28, 2008

Your Brand I.Q. on Drugs

Need a way to brighten up a rainy afternoon at your desk?  Check out Erowid's "99 Ecstasy Tablets" (2007) below -- and then set a timer for 60 seconds and click the image to visit the larger original. How many logos can you identify in a minute?  And what do those particular brands say about your consumer identity?  Look closely -- some of Counterfeit Chic's favorite marks are a bit faint.

Warning:  Trademark holders are likely to be less than ecstatic about this particular artistic medium. 

 

Via BuzzFeed.  


 

October 23, 2008

Sarah's Shopping Spree

When Politico revealed yesterday that the Republican National Committee had spent $150K at Saks and Neiman Marcus to dress Sarah Palin for the campaign trail, your favorite law prof's telephone lines lit up. 

Was it legal?  Yes.  Campaign finance laws prohibit the conversion to personal use of contributions accepted by a candidate, specifically including clothing (2 U.S.C. 439(a)) -- but this was RNC money, not funds from the McCain campaign.  Nice loophole.  Even if the bills had been paid with a candidate's contributions, the campaign could still have argued that this particular clothing was not "an expense that would exist irrespective of the candidate's election campaign," so long as Sarah wore the clothes for campaigning only.  When a spokesperson stated that the intent all along had been to donate the clothes to a charity after the campaign, the idea may have been to establish this argument.  And contrary to some suggestions, if the RNC retains ownership of the clothes and merely lets Sarah use them during the campaign, she shouldn't have to pay income tax on the $150K. 

Was it politically savvy?  Are you kidding? Mrs. Joe Six-Pack doesn't drop $150K at a time at luxury retailers.  Especially not in the middle of an economic meltdown.  Of course, we're a visual culture, and political theatre requires makeup, props, lighting -- and yes, costumes.  For Sarah to be on the road and photographed every day for a couple of months, the wardrobe augmentation was strategic and perhaps necessary.  But for a political candidate billing herself as a hockey mom and trying to overcome a reputation as attractive but uninformed, going the luxury route was a PR disaster.

For more on my conversations yesterday, check out the following:

  • Olivia Barker at U.S.A. Today
  • Frank James at the Chicago Tribune online (my favorite comment -- and, yes, fashion law now exists!)
  • Robin Abcarian and Kate Linthicum at the L.A. Times
  • Jennifer Garske at AP Radio
The moral of the story?  If you're seeking office, make sure you look good -- but not too good.  And save your exclusive B-list shopping trip (Barney's, Berdorf's, Bendel's, Bloomie's) for the post-election celebration. 

October 22, 2008

Say It Ain't So, Mrs. O!

When Counterfeit Chic learned that Mrs. O, a website dedicated to following Michelle Obama's fashionable choices, had mistaken an H&M dress for a Narciso Rodriguez, the fashion world stopped turning for a moment.  Had the sartorially sophisticated future First Lady turned to knockoffs in an attempt to win over everywoman on the campaign trail?  And knockoffs of Narciso, no less, which are quite common in more than one sense of the word?

Happily, the alleged Narciso is not in fact a copy -- unless you assume that the use of horizontal stripes and a sleeveless silhouette is proprietary.  Take a look at the Michelle in the real Narciso (left) and in the H&M (right).  The Narciso has an empire waist (more easily visible here) rather than a natural one, a solid rather than striped top, no belt, an exposed zipper in the back, a deeper and more subtly curved neckline, and a completely different color scheme. 

 

Perhaps the Mrs. O site rushed to judgment on the mistaken assumption that Michelle had chosen Narciso again, rather than making a fast-fashion selection that might be a bit more politically palatable during the current credit crunch.  (Note to Michelle:  Creative designers like Narciso have to pay their bills, too -- Seventh Avenue needs you!)  No offense to the editor, of course -- the camera often can't capture quality, construction, and all the design details that would make an H&M dress hard to mistake for Narciso if examined in person. 

That being said, it can be easy for even a well-intentioned shopper to select a knockoff when looking for a bargain .  Without an encyclopedic knowledge of fashion, it's hard for a layperson to be sure whether that budget-priced beauty is a copy of an unknown designer original.  In this case, however, Michelle is in the clear -- and living proof that some women can make even an inexpensive dress look simply smashing. 

Thanks to my smart and stylish research assistant Ariana Lindermayer for the tip!

October 21, 2008

The Gang Formerly Named for Genghis

The Mongols have a constitution and bylaws, wear matching insignia, and earn the equivalent of merit badges -- albeit for things like committing violent crimes or engaging in certain sex acts.  They've even registered their name as a service mark.  But the members of the notorious motorcycle gang are no Boy Scouts, and federal law enforcement officials have taken a novel approach to intellectual property law in an attempt to shut down the organization. 

In addition to a massive early morning raid that resulted in dozens of arrests, the L.A. Times reports on this more subtle approach:

U.S. Attorney Thomas P. O'Brien said if his plan is successful, the government would take over ownership of the trademark, and anyone caught wearing a Mongols patch could have it seized by law enforcement on the spot.

"Not only are we going after the Mongols' motorcycles, we're going after their very identity," O'Brien said in a telephone interview early this morning.

In an article from the Associated Press, O'Brien added, "It would allow law enforcement to seize the leather jackets right off their back."

Of course, the prosecutor could simply have attempted to strike at the group's legitimacy by canceling the mark, perhaps arguing that it consists of "immoral, deceptive, or scandalous matter" or is "primarily geographically misdescriptive," since the gang operates out of southern California, not Asia.  Cancellation, however, would allow the Mongols -- and anyone else who chose to do so -- to continue using the mark, though not exclusively.  Federal ownership would instead ensure that nobody outside the government could legally reproduce or use the mark in connection with the group's activities.

And after all, men who are allegedly willing to sell drugs, commit murder, and copulate with corpses will surely hesitate to engage in intellectual property infringement.   

 Mongols' logo

Thanks to fabulous Fordham Law alum Suzana Carlos for the tip!

October 20, 2008

Tough Times and Legal Measures

With graphs of the stock market looking as uneven as a 1920s handkerchief hemline, fashion industry insiders are wondering what is in store for the upcoming season.  Your favorite law prof recently chatted with WWD's Liza Casabona about anti-counterfeiting activity and the PRO-IP Act and with Adrianne Pasquarelli of Crain's New York Business about the effects of tighter credit.  The connection?  Whether the issue is copies or credit, more strategic decison-making is in order. 

 

Thanks to Liza (and co-author Kristi Ellis) and Adrianne for the quotes!  

October 16, 2008

Button Up!

With the most interesting election season in years drawing to a close, many have taken to wearing their votes on their sleeves -- or their lapels, hats, and T-shirts.  All of these actions are constitutionally protected free speech.  Except, it would seem, inside certain states' polling places. 

Virginia has just joined a number of other states in prohibiting voters from wearing to the polls any items of apparel that advocate for or against a particular candidate or issue.  Those who do so will presumably be asked to remove or cover the offending items before being permitted to vote.  

While the goal of avoiding intimidation or coercion of fellow voters is an important one, surely these laws go too far.  Political speech is at the core of the rights of expression that are so vital to a functioning democracy, and clothing is a key medium of personal expression (more on this point in a forthcoming article).  Poll workers, police, and others acting in an official capacity should maintain their neutrality, but the attire of private citizens at the polls is hardly a threat to public order -- indeed, it may be considered a quiet contribution to public debate. 

Counterfeit Chic thus urges all partisans to go and vote while wearing your team colors, whatever they may be.  And if your local election officials give you trouble?  Engage in a bit of creative civil disobedience and amortize your Halloween investment by wearing Sarah Palin wigs and glasses or Hillary-style orange pantsuits on Election Day. 

 

Thanks to Anonymous in Richmond for the tip!  

Project Runway: Copy Cut

 

On last night's Project Runway finale, the fireworks over Kenley's copies finally fizzled out as the contestant came in a distant third -- but not before the judges once again noted the similarity between a look from the contestant's collection and the recent work of a renowned designer.  The same Spring 2008 Balenciaga show that Counterfeit Chic suspects inspired Kenley's only individual win during the season apparently also served as the source of one of her final dresses.

 

 Balenciaga Spring 2008 (left) and Kenley's dress

At least the judges graciously predicted that Kenley would have a bright future in the industry -- and restrained themselves from suggesting that she send her resume to Forever 21.  

The design ingenue, of course, appears determined to persist in her disingenuous denials.  Her last word to the camera, as she dissolves in tears, is to call her designation as a copycat "bullsh*t."  Now there's an argument that will charm editors and win lawsuits. 

But lest copying controversies drown out the other contestants' success, congratulations to winner Leanne and runner-up Korto!

Related Post:  Project Runway: Birds of a Feather

October 15, 2008

Quis custodiet ipsos custodes?*

From time to time Counterfeit Chic features works of art that "borrow" fashion-related trademarks, whether for purposes of commentary or cultural reference -- but I've never before considered compiling a catalogue raisonne.  It seems, however, that at least one art aficionado has based his entire collection on prints that flirt with the limits of trademark law.  Perhaps predictably, the guy is an intellectual property lawyer.
 
Fatbombers conducted an interview with "Giacomo" (surname wisely withheld) discussing some of his prizes, including beejoir's "LV Child" below.  When asked how the trademark holders reacted to these works, he responded by offering examples and noting that, while Louis Vuitton had sued Nadia Plesner, the company had never acted against beejoir.  Might the collector be considering a sideline defending his favorite artists?
 
beejoir's LV Child 
 
In any case, should "Giacomo" eventually decide to liquidate his collection, some lucky auction house will have its lawyers working overtime. 
 
*Who will watch the watchmen themselves?

October 13, 2008

Pro and Con on the PRO-IP Act

Omnia mutantur nos et mutamur in illis.
 
It's no news that Washington's weather forecast calls for winds of change, whether in the form of "change we can believe in " or a pair of self-described mavericks.  For at least one change, however, we won't be waiting until November.  President Bush has just signed the Prioritizing Resources and Organization for Intellectual Property Act, a.k.a. the PRO-IP Act.  Among other provisions intended to enhance IP law enforcement, the law creates a cabinet-level Intellectual Property Enforcement Coordinator, more (or less) popularly known as the "Copyright Czar." 
 
While RIAA has no doubt joined other business proponents of the PRO-IP Act in dancing to its infinite playlist this evening, some public advocacy groups are bemoaning their latest defeat.  
 
But wait -- things are not always as they seem. 
 
Since the Copyright Czar must be confirmed by the Senate, the first appointment to the position will probably not be made by the lamest of Presidential ducks but by the new guy.  And if that new guy turns out to be Obama, it stands to reason that he would turn to his intellectual property and technology advisors, including his former University of Chicago colleague Larry Lessig, for advice.  Given Lessig's longstanding opposition to expansion of intellectual property protection -- including recent editorializing -- the successful advocates of the PRO-IP Act may end up with less than they lobbied for. 
 
Though I seriously doubt that they'll get a refund.  
 

October 09, 2008

Project Runway: Birds of a Feather

It seems that every season of Project Runway involves a copying complaint of one variety or another, and this year is no exception.  In last night's episode, contestant Kenley whines that two of her fellow competitors have knocked her off -- by which she means only that they, too, chose to make short rather than long bridesmaids' dresses (at the urging of design guru Tim Gunn).  Proprietary hemline lengths?  Hardly a compelling argument.  Kenley, however, seems to have a double standard when it comes to copying. 

Watch the strangely restrained critique of Kenley's wedding gown from designer Michael Kors and the confirmation of copying from fashion editor Nina Garcia, along with the aspiring designer's denial...

...and then judge for yourself.  McQueen showed his dress (left) to rave reviews  just months before the filming of Project Runway.

 Alexander McQueen Fall 2008 (left) and Kenley's design (right

But wait, you think.  Kenley may have copied the strapless, fitted, off-white, feather-covered bodice, the full feathered skirt with tulle beneath, and the feathers sprouting from the model's head, but didn't she at least come up with the only other element -- the extra mass of tulle beneath the skirt -- on her own?  Not exactly.  The bird-brained contestant's dress is a mashup of the McQueen above and several of his other feathery looks from the same show, which use that same riot of tulle as an underskirt:

 Alexander McQueen Fall 2008

Still, knockoff or no, shouldn't Kenley's performance over the course of the season -- a series of vintage-inspired frocks regularly ridiculed by her fellow designers -- entitle her to compete for the big prize? 

Let's take a look at her only individual winning design, which does have a rather modern silhouette.  At the time (episode 3), Counterfeit Chic thought it mimicked the couple of dozen Balenciaga looks with which designer Nicolas Ghesquiere had deeply impressed editors for Spring 2008.  Floral prints, strong shoulders, rounded hips, high neck, short skirt -- all in all, a very distinctive and powerful take on spring dresses.  Still, Kenley's version was enough of a departure that, while not the kind of original vision that can make a designer's reputation, it wasn't just a knockoff (though it shouldn't have been a winner, either).  In retrospect, it may indeed have been an indication of what to expect from this Project Runway contestant.

 Balenciaga Spring 2008 (left) and Kenley's winning design (right)

Why, if Project Runway purports to be a search for "the next great American designer," has blatant copying not resulted in early elimination?  Why are crooked hems or dangling threads apparently the greater sins when professional designers are expected to create a unique (and profitable) vision, not sew on deadline?  

Perhaps the unoriginal contestants have simply been good television in one way or another, and thus worth keeping around.  Perhaps the producers believe that some great American designers are copyists.  (No names -- today.)  Or perhaps producer/judge Heidi Klum is loathe to penalize anyone else for copying, given the accusations leveled against her jewelry line by Van Cleef & Arpels in a recently settled lawsuit. 

This laxity with respect to knockoffs must be good news for the team designing Heidi's own line in partnership with Jordache.  Following a recent series of celebs whose eponymous labels are filled with copies straight from their closets, Klum appeared in the New York Times in July 2007 wearing a top from the Lower East Side design duo Foley + Corinna (on model below), whose designs have become copy-catnip.  Then, this past May, she showed up in People magazine alongside looks from her own line, including a suspiciously similar top (below right). 

 Foley+Corinna (left) and Heidi Klum (right)

Maybe next season Project Runway -- on Bravo or Lifetime, whichever channel wins the legal tug-of-war over the show -- will take the opportunity of illustrating to aspiring designers the line between inspiration and imitation. After all, in an information-rich, consumer-savvy market, names are not made on knockoffs.  Not to mention the fact that in every major fashion capital except New York, they're legally actionable.  At the same time, young designers are regularly hired to carry on the tradition of a famous fashion house, which involves a bit more than just ransacking the archives.  Counterfeit Chic can't wait for Tim Gunn's take on that challenge.  

And in the meantime, let's hope that in this season's final episode Kenley's avian abomination gets plucked.

October 06, 2008

Egyptian Goddess Rules

IsisWithin the realm of intellectual property, design patents are a bit like suspenders or cocktail hats.  They always appeal to a core of independent-minded and devoted individuals, but only occasionally does everyone else sit up and pay attention.  The recent en banc decision of the U.S. Court of Appeals for the Federal Circuit in Egyptian Goddess v. Swisa, a case involving a patented mani/pedi nail buffer design, is one of those moments. 

Design patents differ from their better known relatives, utility patents or simply "patents," in that they can protect a "new, original, and ornamental design for an article of manufacture."  In other words, they apply to the appearance of an invention rather than its useful aspects. 

This might sound perfect for new fashion designs -- but for the fact that it's not always easy for a design to qualify as "new," it's fairly expensive to get a design patent and almost always requires legal assistance, and it takes too long to be useful for most fashion designs.  (As of today, the U.S. Patent Office reports that the average pendency of a patent application is 24.6 months.  Even if design patent applications might be a bit quicker, over 2 years is an interminable wait in a seasonal industry.) 

Still, shoes, handbags, decorative closures, and other accessories and portable design elements have a longer lifespan than clothing designs, making design patents more plausible as a route to protection.  And with the Federal Circuit's new ruling, which simplifies the process of proving infringement, a trickle could become a trend.

Prior to the Egyptian Goddess decision, a design patent holder claiming infringement was subject to two separate tests:  the "ordinary observer test" and the "point of novelty" test.  The court has now overruled previous decisions to hold that only one test, a clarified version of the ordinary observer test, should be applied.  The ordinary observer test, which dates back to a nineteenth-century case involving silverware patterns, Gorham Co. v. White, 81 U.S. 511 (1871), provided that "if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other." 

Subsequent disputes raised concern that an ordinary observer could be deceived not because the patented design had been copied, but because both the patented design and the allegedly infringing design were similar to earlier designs.  Thus, in Litton Systems, Inc., v. Whirlpool Corp., 728 F.2d. 1423 (Fed. Cir. 1984), the point of novelty test was born.  (While defendent Swisa tried to connect the test back to another nineteenth-century Supreme Court case, the Federal Circuit wasn't buying.)  Under the point of novelty test, a later design would only constitute infringement if it incorporated the element or elements of the patented design that distinguished the patented design from prior art.   This worked fairly well for designs with only one distinguishing feature or point of novelty, but not so well for those with multiple points of novelty, since defendants could argue that their designs didn't copy all of those elements. 

The court in Egyptian Goddess thus concluded that the best approach would be a single ordinary observer test -- but one hypothesizing an ordinary observer who is familiar with the prior art.  There can be no deception and thus no infringement unless an accused design actually copies the patented design (as opposed to copying earlier elements or combinations of elements), but only one test is necessary. 

In addition to simplifying the test for infringement, the Federal Circuit also essentially acknowledged that, when it comes to describing a design, a picture is worth a thousand words.  Trial courts, which were previously required to engage in "claim construction" as they do in utility patent cases by providing a "detailed verbal description" of what exactly is protected, need no longer do so.  Instead, it's up to the trial court to decide how much verbal description is necessary either to explain its own analyis or to guide a jury.  According to the court, this change avoids placing undue emphasis on one particular design feature or on the individual features as opposed to the design as a whole, as depicted in the patent drawings.

Unfortunately for Egyptian Goddess, Inc., this nailbiter of a design patent tale didn't change the outcome of the dispute.  The accused design doesn't infringe, either under the old tests or the new one.  But as a design patent decision, Egyptian Goddess is likely to rule for the foreseeable future.

P.S.  Counterfeit Chic correspondent and design devotee Perry Saidman forwarded information regarding a Federal Circuit Bar Association panel on the case taking place tomorrow, Tuesday, Oct. 7, at noon.  Tune in via the internet or, if you're in D.C., join the panel for lunch.  (Your favorite law prof has a prior commitment to planning an estrogen-fueled global takeover participating in the Newsweek Women and Leadership Conference, but I'll be dreaming of design patents anyway.) 

October 02, 2008

Parallel Lines

If adidas were a gambler, the federal district court in Portland would be its favorite slot machine.  After winning a USD $305 million award against Payless for infringement of the famous three-stripe trademark back in May, adidas carried on with a lawsuit against Wal-Mart.  The parties settled in late August, and now WWD's Matthew Lynch reports that adidas is back again, this time with another chapter in its long-running battle against Target

While adidas' complaint against Target is not yet publicly available, several of the athletic shoes on the chain's website incorporate parallel stripes into the designs.

 Target's bold stripes

 _________________________________________________________________

Meanwhile, Asics has claimed that its curved and criss-crossed stripes have been copied on athletic shoes from Dolce & Gabbana's D&G label.  Perhaps Asics should think about raising its prices to match?

 Asics Revolve USD $64 (left) and D&G $219

 _________________________________________________________________

And while all these lines converge in court, freelance journalist Kate Hahn has actually succeeded in creating a successful parody of the problem.  As anyone who has ever seen Robert Altman's film Prêt-à-Porter can attest, it is notoriously difficult to make fun of fashion.  The reality is already so far out there that attempts at humor tend to fall flat. 

Not so with Kate's Forgotten Fashion: An Illustrated Faux History of Outrageous Trends and Their Untimely DemiseAmong her pseudo-historical vignettes is the rise and fall of the "Adididas" brand, a counterfeit label of such extremely unpredictable -- but uniformly poor -- quality that it is said to have inspired destruction competitions among student backpackers.  You won't want to miss this tale of peeling stripes and exploding shoes, or the irony of the fakes' fall from favor once their quality improved and they actually began to resemble the real thing. 

 Illustration by Amelia Haviland

Kudos to Kate for creating, along with Andrae Gonzalo and other illustrious illustrators, a series of amusing stories that will smooth the frown lines of even the most imperious fashionista.  It's like Botox in book form -- only better. 

October 01, 2008

Spike this Heel!

This month your favorite law prof has been invited to guest blog at Concurring Opinions, a group site run by a number of fabulous colleagues from around legal academia.  Not to worry, though -- Counterfeit Chic won't be neglected.  And the occasional post may even be relevant to both sites.

So head over to Concurring Opinions now to find out why this Dior sandal, with what is reportedly a Masai fertility figure as its heel, is giving me a mental blister. 

 Christian Dior by John Galliano Spring 2009