April 2011 Archives

At the wedding of a twin years ago, a group of friends gathered around the bride at the reception to compliment her dress.  Her sister and maid of honor, who was to be married only a few months later, added, "You look beautiful.  I should wear it too."

The rather unlovely bride -- at least in terms of temperament -- turned and snapped, "Why would I let you do that?!  We're already identical, and this is my dress!"  An awkward silence fell as the twin sisters glared at each other.
Presumably Kate Middleton will vent no such fury on the aspiring princesses-for-a-day who are already coveting her Alexander McQueen dress, or knockoffs thereof.  The memory of that awkward wedding moment, however, does call to mind every woman's dilemma, heightened by the tense expectations of a wedding day:  When is wearing the same dress as someone else a faux pas, and when is it merely marching in step with style?

For the legions of bridal, prom, and special occasion designers queuing up to copy Kate's bridal gown, the issues of identicality are less social and more economic and legal.  How can copies be made at the greatest speed and lowest price?  And how close is too close, legally speaking?

In the U.S., design pirates sailing the white-capped waves of bridal lace and silk face few or no obstacles.  Intellectual property law only rarely protects dress designs, though the instant fame of Kate's dress could support a trade dress argument.  (Contrary to the New York Times article on the subject, no "subtle modifications" are required by current U.S. copyright law -- at least until the eventual passage of the IDPPPA or a similar bill.)  In the U.K., however, high street shops and budget bridal emporia will have to copy carefully in order to remain on the right side of the law protecting deigns. 

In the case of Sarah Burton's Alexander McQueen creation for Kate, copyists can take comfort in the fact that, while the style is flattering to Kate and the many would-be dupliKates, the dress is not especially original.  Long lace sleeves and V-shaped neckline over an opaque sweetheart bodice, deeply pleated A-line skirt, train -- been there, done, that, although not this decade.  As with the much copied Issa and Reiss dresses that Kate wore for the announcement of her engagement and the official portrait, the look is classic and elegant -- neither a Diana-style meringue nor an avant-garde style statement. 

On the other hand, even in the U.S. original lace patterns are subject to copyright protection, so the floral lace-covered bodice should give the most meticulous of imitators pause.  As copyists 'round the globe scream for their seamstresses, dismiss their beaders, and buy as much lace as possible, they'll need to be wary of being caught in their own netting -- although it's more often the fabric mills that are responsible for printed patterns and lace designs sold to clothing manufacturers.

Of course, most manufacturers who find themselves "inspired" by Kate's gown are old hands at the imitation game, and they know their local laws well.  Lawyers 'round the world, feel free to enjoy the royal wedding ceremony and linger over the celebration -- the real race right now is not to the courthouse, but to the sales rack.  Once British bookies have paid out on the 6-1 odds that Sarah Burton would be the designated designer, the next bet is who will have the quickest copies. 

One way or another, it will be a photo finish.   

In a Lenten lawsuit filed yesterday, Christian Louboutin has accused the house of Yves Saint Laurent of tarnishing the late designer's halo by copying Louboutin's trademarked red soles. 

But is this a cardinal (red) sin, legally speaking, or another fling with the aesthetic functionality defense that Counterfeit Chic has previously surmised may be a loophole protecting other apparent red-on-red ripoffs?
YSL red sole cropped.jpg
YSL sandal on Bluefly.com.
In several of its styles, YSL created not only red shoes with red outsoles, but also purple with purple soles and black with black soles.  Will the company claim that the offending red sole was a non-trademark use chosen simply to match the upper portion of the shoe, thus transubstantiating the otherwise trademarked red sole into a defensible design detail?  With two such successful and storied luxury brands battling it out, we may finally learn whether or not this legal doctrine will be hurled from high heel heaven.

Little-used law aside, however, Counterfeit Chic is somewhat surprised that designers for the distinguished house of YSL would walk where angels fear to tread and hopes that Christian isn't thrown to the legal lions.

UPDATE:  Complaint here.

ADDITIONAL UPDATE:  Answer and counterclaim here.