Fishing for Compliments? Marc Jacobs v. Ed Hardy

Just in time for New York Fashion Week, stories of a potentially significant lawsuit are splashing around the 'net -- and this one's no fish tale.

A complaint by Marc Jacobs against Christian Audigier's Ed Hardy label joins the recent trickle of trade dress claims which, if successful, could become a flood over the next several seasons.  This one is a tale of two totes, the Marc by Marc Jacobs "Pretty Nylon Little Tate" (left), which is quilted with a scrambled version of the Marc Jacobs trademark, and the Ed Hardy "KOI Jana Nylon Tote."  In describing the claimed trade dress, the complaint notes not only the Marc by Marc bag's dimensions and overall appearance but also the quilted pattern, knotted handles, vertical side pockets, metal plaque, and other details.  Both totes are available in multiple colors and at similar price points (around $150-$160 full retail).  Additional embellishment aside, the alleged copy appears, well, right on the Marc. 

Marc_Jacobs_v_Ed_Hardy.jpgThis case is a particularly interesting test of the growing trade dress trendlet, given the prominent appearance of each party's trademark along with the claimed trade dress.  The Ed Hardy tattoo-style fish print further complicates a demonstration of likelihood of consumer confusion with respect to who created each tote.  On the other hand, Marc has sold thousands of his bags and seen them included in numerous editorial layouts -- and, short of a design patent, a trade dress claim is the only opportunity under U.S. law to potentially prevent a competitor from taking a widely recognized design, slapping on an extra element or two, and selling it as his own.   

For good measure, Marc Jacobs also alleges infringement of the trademark in the scrambled-letter version of his name, as well as California unfair competition claims.  The trade dress claim is the most interesting argument, however, though it remains to be seen whether the court will take the bait. 

P.S.  You didn't think that Christian Audigier was the only one to have been allegedly lured in by the Marc by Marc Jacobs tote, did you?  Here's another somewhat fishy example, this one from Forever 21:
F21_copy_Marc_Jacobs_Pretty-Nylon-Little_Tate.jpgThanks to all who  wanted to hear from Counterfeit Chic regarding this case, including dedicated legal fashionista Kristina Montanaro!