So who needs confirmation hearings?
May 2009 Archives
So who needs confirmation hearings?
For observers of an interesting case, it's as frustrating as a tie score in a Yankees-Red Sox game called after a long, cold rain delay. For the parties, especially whichever one expected a win, it incites violent thoughts regarding whichever juror(s) saw Twelve Angry Men one too many times and was left with delusions of grandeur.
Ever since Trovata, designed by John Whitledge, filed its lawsuit against fast-fashion company Forever 21, Counterfeit Chic and others have been keeping close watch. Could this case publicly restore elasticity to trade dress protection in fashion design cases? What would it mean for the average designer? Now we won't know -- at least for a while.
I've been holding back on discussion pending the outcome of the case, but obviously it's time. Stay tuned -- more to follow.
This morning The Takeaway caught up with your favorite law prof to ask what soon-to-be Justice Sotomayor might choose to wear to highlight her role as a "wise Latina woman" on the Court. Tune in to compare her options with those of U.S. Supreme Court justices throughout history -- from John Jay's black and red to Sandra Day O'Connor's jabot to William H. Rehnquist's infamous gold stripes.
Quick advice? Black is appropriate and traditional, not to mention second nature to a New Yorker, but Judge Sotomayor should feel free to retain the occasional flash of bright color and her signature bold earrings. (In fact, why not celebrate with a new pair? It's not every day that a girl gets appointed to the Supreme Court.) Yes, judicial robes are intended to obscure the individual and focus attention instead on the official role; no, there's no point in trying to hide beneath them. Not that Judge Sotomayor is in any danger of ever fading quietly into the background.
Related post: Lady Justice's Robes
"Should ageless beauty be available only the superrich?"
Unilever's long commercial -- or perhaps short film -- for Lux shampoo opens with a radio interview of a scientist who has isolated and augmented a precious natural substance, a true fountain of youth. Cut to Catherine Zeta-Jones entering a high-security production facility along with a line of other young women who can't afford the product they manufacture.
But wait, "Robyn" is no ordinary prole. Along with a dashing motorcyclist, she's crafted a diversion that will allow her to smuggle some of the exclusive substance out of the factory by using it to wash her own hair.
On to the grammatically suspect happy ending: "Successful in obtaining a precious sample of the golden elixir, just one hair from Robyn's head was enough to unlock the formula, fulfilling her dream of making beauty available to all women."
Yes, that's "Robyn" -- as in Hood. Who knew a corporate conglomerate would be so enthusiastic about the theft of trade secrets?
But the fun isn't over yet. Several other questions raised by the case, including whether eBay's purchase of L'Oreal trademarks to generate sponsored links in response to keyword searches constitutes infringement, will be referred to the European Court of Justice for further guidance.
Nothing to do this weekend? Read the opinion here.
By happy coincidence, the clever inventors at Modern Mechanix recently posted an article from 1930 about a miniature golf impresario who was frustrated by the holes left in his pristine greens by the dagger-sharp heels of his lady patrons. His response was the shoe cover at left. And that's not all. While it doesn't seem that Mr. J.H. Binks ever patented his invention, a couple of years later one Albert W. Givens came up with his own somewhat simpler and more elegant solution to the same problem, right, and received patent no. 1875806 for his pains.
Since the patent is long expired, might Counterfeit Chic suggest a classically inspired version, perhaps in the shape of a caryatid or a muscular Atlas?
In preparation for trial, American Apparel first indicated that it would follow a strategy intended to undermine Allen's celebrity endorsement value (and presumably embarrass him) by resurrecting the old scandal regarding his affair with and subsequent marriage to his then-companion Mia Farrow's adopted daughter, Soon-Yi Previn. AA founder Dov Charney, no stranger to charges of inappropriate sexual behavior himself, somehow seemed to claim kinship with Allen on on this basis -- and then went on to make generalized statements about the right to free speech.
Legally speaking, the first reported strategy was sleazy but had an outside chance of influencing the court with respect to the measure of damages; the second wasn't worth the pixels it was written in. Yes, Charney is entitled to call Allen his favorite filmmaker and even make comparisons between Allen's twisted history and his own; no, he doesn't have the right to put Allen's face on a billboard next to his own company's logo without regard for Allen's rights of publicity. End of case.
According to the New York Post, Charney remains unrepentant and insists that American Apparel's insurance company drove the settlement. He added that, for his part, there were no hard feelings.
Previous post: Annie Get Your Gun
Three, however, is not always greater than 2 -- at least when the 3 in question is adidas' famous 3-stripe logo. According to WWD, an Italian court recently declared void all adidas trademark registrations within Italy involving only 2 stripes and thus absolved Dolce & Gabbana of any future liability for using 2-stripe decorations on various articles of apparel, at least in its home market. This contrasts with an earlier German decision holding that a D&G trouser design incorporating 2 stripes created a likelihood of confusion with adidas' trademark, as well as with recent U.S. cases in which adidas successfully claimed that using 2 stripes on athletic shoes constituted infringement.
Tracy Reese (left), a Detroit native, designs a namesake line of "ultra-feminine pieces layered with intelligent nostalgia, charm and luxury," as well as additional apparel lines and brand categories. She's experienced firsthand the difficulties of keeping a small startup business afloat through tough times -- but she's also had the tremendous coup of seeing Michelle Obama wearing one of her designs on the cover of People magazine.
Francisco Costa (right), who grew up in Guarani, Brazil, has won two CFDA best womenswear designer awards in five years as the creative director of Calvin Klein Collection. His role at the helm of the only major American fashion house to maintain a consistent presence after the departure of its eponymous founder puts him at the forefront of the future of the industry.
Their shared wish? Swift passage of the Design Piracy Prohibition Act, the pending legislation that would create intellectual property protection for fashion designs under U.S. law.
And, of course, world peace.
Related posts and more on the new and improved DPPA: March on Washington, March on Washington 2: Project Beltway
Yes, that's right: Although French courts had previously ruled in favor of plaintiffs Hermes and LVMH in similar cases against eBay regarding the online sale of counterfeits and unauthorized goods, this time plaintiff L'Oreal lost, despite the home court advantage. That makes L'Oreal's record against eBay 0-2 (Belgium, France), with 2 verdicts pending (Germany, U.K.), and one trial date yet to be scheduled (Spain).
So much for L'Oreal's attempt to shift responsibility for policing online auctions across the E.U. onto eBay's shoulders -- or at least to divide the national jurisdictions and conquer through subsequent harmonization. Indeed, on a global scale, brand owners' attempts to create momentum in favor of third-party liability appear to have stalled, though Tiffany's appeal of last summer's verdict in favor of eBay in the U.S. is still in progress.
No doubt similarly situated cosmetic, fashion, and luxury goods companies will be eagerly awaiting the outcome of the court-ordered mediation between L'Oreal and eBay in France.
Related post: European Theatre of Operations: Everyone v. eBay
Less than a year after the Smoking Gun established that the rapper was indeed a former prison guard, despite his denials, he appears on the cover of XXL Magazine insisting, "I've never had a credibility problem and still don't." Of course, this assertion might have been a bit more authoritative if his bling of choice weren't a pair of counterfeit Louis Vuitton sunglasses. (Yes, as Vuitton attorney Michael Pantalony points out in a letter to the editor, counterfeiting is illegal; no, it's not the sort of offense that earns style points. Especially when the luxury label also hastens to disavow any affiliation with or endorsement of the artist.)
Eugenio Merino was in turn attacking the artistic integrity of the fashion house's favorite artist. Takashi Murakami's multi-year collaboration with LV has been extremely successful, but Merino apparently takes issue with the his fellow artist's superflat philosophy and decision to disregard the sacrosanct line between art and design. At least the sculpture wears an original LV bag, not a knockoff. (Via Animal.)
Gawker's call to indict the guy for "for crimes against taste, nature and the fairer sex."
Thanks to fabulous Fordham law grad Louis Abrams for the Rick Ross tips!
Entertainment Weekly: Imitation might be the sincerest form of flattery, but boy can it make for some lousy television.
Chicago Tribune: Knockoffs are the bane of the fashion industry, and they're certainly not unknown in the reality television genre. But in a weird turn of events, Bravo is ripping off its own former flagship series.
NJ Star-Ledger: We would not be surprised to learn that knock-off king Allen Schwartz is a producer on Bravo's "The Fashion Show"...All of which made it that much more amusing to watch the preview clips from future episodes, which include a much affronted and very dramatic Isaac Mizrahi advising, "Don't insult us with a mere knockoff!" At least the show's editors have a keen sense of the ridiculous.
L.A. Times: As a mad scientist remakes a dead lover from her remnants or a man marries a replica of his first wife, so Bravo -- the network "Project Runway" left for Lifetime -- has created a new series in the image of the departed old.
Time: I don't hate The Fashion Show; it's not really distinctive enough to be worth hating. It just feels like the TV equivalent of a fake Louis Vuitton bag.
His opening anecdote, however, involved not an attorney's weight but her attire. Specifically, the brown skirtsuit that Beth Brinkmann wore to argue before the Court in her role as a member of the Solicitor General's office in 1996. Apparently then-Chief Justice Rehnquist wrote a letter informing Ms. Brinkmann's boss that he and his judicial colleagues didn't approve of the color. The SG responded by defending Ms. Brinkmann and noting that the presence of a significant number of women in his office was recent enough that a sartorial norm had not yet been established. From then on, however, the women of the SG's office wore black to court.
Were this an isolated instance of a jurist with somewhat eccentric ideas about clothing, there would be no need to comment. After all, Rehnquist is the guy who added gold stripes to the sleeves of his black robe after seeing a costume he liked in a Gilbert and Sullivan operetta. But over the past decade I've encountered several instances of judges who seem to moonlight as fashion police officers, particularly when it comes to women attorneys. (Let me hasten to note here that my judge -- that is, the judge for whom I clerked, the Hon. Morris S. Arnold -- would never be so crass, though he does have excellent taste.) Imagine appearing before these distinguished judicial brethren:
- The judge who asked an attorney wearing high-heeled leather boots with her skirtsuit to leave his courtroom and return with more appropriate footwear. In midwinter. In a notoriously cold midwestern city.
- The judge who from the bench informed an attorney that her jewelry was distracting.
- The judge who mentioned in conversation that he's fairly liberal-minded and allows women to wear trousers in his courtroom, but that some of his fellow judges disapprove of such apparel. Asked later to confirm this, he did so and added, "It's not necessarily the ones you'd think."
The underlying question here is whether unwritten dress codes are inappropriately -- and perhaps deliberately -- applied to undermine the professional authority of female attorneys who inadvertently violate them. Women's sartorial selections are indeed more likely to draw criticism than men's, not only because we've been dressing for business for a shorter time but also because we maintain a wider range of choices. (Just ask Hillary Clinton.) And public criticism is indeed a useful tool in the establishment of social norms. A dressing-down from the bench, however, is a sufficiently severe sanction that it should be reserved only for true breaches of decorum -- and then only if the issue really is the clothing and not the gender of the person wearing it.
Alternatively, any judge offended or distracted by counsel's attire could simply follow the lead of Lady Justice and don a blindfold.
Tim has spent over 20 years educating aspiring fashion designers; Leanne is one of the extremely talented creators who have benefited from his guidance. Together they have a great deal of insight into what it takes for a young designer to succeed -- and how the law can assist in those efforts. (Leanne's Fall 2009 collection, by the way, is lovely. Just imagine the hours it took to create this many-petaled gown, which I had the pleasure of viewing at her show along with Tom & Lorenzo (formerly the Project Rungay Boys), Ann, Barb, and Emmett.)
Design Piracy Prohibition Act, H.R. 2196 (again, apologies for not being able to share it during the drafting process), would -- like its predecessors -- protect original, registered fashion designs for 3 years via an amendment to the Copyright Act. The new elements of the bill, developed in conversation with members of the industry, include the following:
- an enhanced definition of a fashion design,
- a heightened standard of infringement ("closely and substantially similar," previously part of the Senate version of the bill),
- specific defenses to infringement, such as merely reflecting a trend and independent creation,
- increased penalties for false representation,
- a registration period of 6 (rather than 3) months, and
- creation of a searchable database of registered designs.
How will the DPPA work in the U.S.? Ideally by changing the behavior of determined design pirates, whose business models are currently based on cherrypicking the season's best designs and producing cheap copies, often before the real things can even make it into stores. Once the law creates liability, these copyists will have to actually hire designers of their own and make at least a few changes, or else risk paying out their profits to the rightful owners of the original designs. Or, as Tim Gunn succinctly puts it when describing the DPPA, as a shield rather than a sword.
In short, the Design Piracy Prohibition Act represents the cutting edge of intellectual property protection, narrowly tailored to suit a seasonal industry. All puns intended.
Related post: March on Washington
Last week, in FCC v. Fox Television Stations, Justice Scalia announced his (and the Court's) support for the FCC's decision to impose liability for two uses of inappropriate language on television. The first instance was Cher dropping an f-bomb during the 2002 Billboard Music Awards, and the second was Nicole Richie's now famous query during the same event the following year, "Why do they even call it 'The Simple Life'? Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."
Yesterday the Court indicated that it finds Janet Jackson's allegedly indecent exposure as disturbing as the other leading ladies' language. While the U.S. Court of Appeals for the 3rd Circuit had concluded that the 9/16-second eyeful was insufficient to support the FCC's imposition of a $550,000 fine, the Supreme Court apparently disagrees. The appellate decision in FCC v. CBS has thus been vacated and remanded to allow the 3rd Circuit to reconsider the relationship between bad words and a briefly bared breast.
Coutorture spotted this forthcoming Alice + Olivia version (right) of the
Balmain's tolerance for copyists may be tested in
Kudos to designer Christophe Decarnin for bringing Balmain back to life in such a dramatic fashion. Perhaps its not surprising that so many other labels are taking the zombie approach to creativity and simply trying to pick his brains.