Alexander McQueen may have incorporated his signature skull motif into this fall's "Faithful" motorcycle jacket bootie (below left), but it wasn't enough to scare away a true pirate. Steve Madden copies creative shoe designers so frequently and so, well, faithfully that it's often quicker to identify the few changes than to catalog all of the similarities. In this case of the Seryna bootie (below right), only the substitution of a plain zipper pull and a few minor details of construction (quality of materials, sharpness of the foldover points) give away the game.
The real difference this time around, however, is that the knocked-off designer hasn't accepted being K.O.'d -- and the next round will take place in federal court.
But wait, you say, U.S. law doesn't protect clothing designs against copying. Hence Steve Madden's apparent business strategy: copy everything from sole to shoelace, but avoid the legally secured trademark.
While the complaint isn't yet available online, lawyers for Alexander McQueen are part of an emerging trendlet, namely a return to trade dress claims. Ever since the Supreme Court severely limited the availability of trade dress protection for product configurations almost a decade ago, such claims have been few and far between -- and as a practical matter limited to famous, classic designs or design elements that have been around for years. The secondary meaning requirement hasn't disappeared, but determined attorneys representing clients from Louis Vuitton (against Dooney & Bourke) to Trovata (against Forever 21) have been working to reinvigorate this particular avenue of intellectual property protection. Success has been limited thus far, but legal reasoning springs eternal.
For Alexander McQueen, this means noting that Faithful devotees have included Lindsay Lohan, Mary-Kate Olsen, Rihanna, and the photographers who fall at their feet. Surely, the argument goes, such extensive editoral notice has established a link in the public mind between design and designer sufficient to qualify for trade dress protection. Time -- and the Southern District of New York -- will tell.
From a big picture perspective, if this trickle of trade dress claims continues, will it have a significant effect on the frequent copying of creative clothing?
Yes and no. Established, well-known labels with large marketing budgets and/or celebrity clients -- in other words, those who could demonstrate that some of their most popular designs have secondary meaning -- would have more protection than they do now. Of course, those are also the labels least in need of additional protection, as many customers already seek out their (legally protected) trademarks. While counterfeiters of those trademarks abound, there is at least law on the books against such activity. Emerging designers, by contrast, are less likely to have their still-obscure trademarks counterfeited than to have their designs copied. And since emerging designers are relatively unknown and their designs are unfamiliar to the public, they are far less likely to qualify for trade dress protection and would suffer by comparison.
Whatever the strength of the trade dress trendlet, it will be quite a few seasons before its full impact becomes apparent. In the meantime, Alexander McQueen will simply have to hope that his clients keep the faith.