August 2011 Archives

You can't take it with you -- or can you?  

In traditional Chinese funeral rites, the dearly departed aren't expected to pack lightly for their trip to the next world.  Instead, family and friends send them on with everything they'll need, from traditional money, food, and houses to modern cars and luxury handbags.  The catch?  These items aren't real, they're paper, and they're burned as part of the ceremony.  

The New York Times reports, however, that the owner of a shop on Chinatown's "funeral row" was arrested for selling paper Burberry, Louis Vuitton, and Gucci replicas.  While these companies are understandably protective of their often-imitated intellectual property, a licensing agreement might be more beneficial than an enforcement action for all involved.  If marketers for major brands are excited about the growing Chinese market now, just think of the potential for keeping good customers even after they've passed on.  

Why send potential profits up in smoke?

(Actually, this photo shows the destruction of real fakes, not paper prints, 
but they do make an impressive bonfire of the vanities.) 

Fun with Nouns

When DVF is inspired, it sparks a fire.  Many iterations later, here's the result!  

Head over to the CFDA's website and print a copy of the Design Manifesto for your workspace wall.  It's about more than just fashion designs.  


In the words of the Daily Mail, "[i]t was never going to break new fashion ground."  

This assessment of the new Kardashian Kollection for Sears is particularly appropriate to one handbag in particular, a klose kopy of the easily recognizable Botkier Clyde bag, which has been around since '04.  Will celebrity "designers" ever look beyond their own klosets for inspiration? 

Botkier (left) and Kardashian Kollection for Sears

Sadly for the softer side of Sears, this particular design includes iconic Botkier elements that may very well add up to trade dress protection -- and Monica Botkier knows it.  Dash for your lawyers, ladies. 

Christian Louboutin has just suffered a slip in his previously surefooted journey to protect his trademarked red soles, in this case against the house of Yves Saint Laurent.

In an effort to stanch the flow of red dye onto the soles of competing YSL shoes, Louboutin not only filed a lawsuit back in April but also asked the court for a preliminary injunction against unauthorized use of his trademarked red soles.  YSL fought back with references to red soles from Louis XIV's heels to Dorothy's ruby slippers to examples from its own archives, claiming that no cobbler can corner the market on red -- and that the Louboutin trademark is thus invalid. 

Today's decision from Judge Victor Marrero, while merely the denial of a preliminary injunction, fell decidedly on the side of YSL -- though the ultimate outcome of the case remains uncertain.  And even were Louboutin's trademark to be canceled in the U.S., the red soles were declared "distinctive" and thus eligible for protection in Europe just two months ago. 

More significant from the perspective of fashion and intellectual property law is the analogy that guided the court's decision.  Fashion designers often rely on trademark law for what little legal protection they have in the U.S., as patents are typically unattainable or impractical and copyright law specifically excludes fashion designs.  Useful articles are categorically excluded from copyright protection, and the Copyright Office has consistently taken the position that articles of apparel are useful.

Judge Marrero, however, hung his order on the hypothetical example of Picasso attempting to prevent Monet from using the color blue in the Water Lilies series because the color had been Picasso's hallmark during his Blue Period.  Unthinkable from an art history perspective, of course.  The court acknowledges that no analogy is perfect -- but then goes on to claim that both painting and fashion design exist in the overlapping spheres of art and commerce, and that neither is well served by individual monopolies on color.

Picasso, The Old Guitarist; Monet, Water Lilies

Setting aside the troubling conflation of use of a red sole as a trademark versus use as a design element, the separation of which is the true challenge in this case, the court's analogy raises an essential question:  Why are paintings characterized as "art" and entitled to full copyright protection while fashion receives almost none?
This question captured my attention back when I was a law student, has informed a decade and a half of thought and research -- and will hopefully one day no longer be necessary.  But in the meantime, Gucci should shelter its trademarked green-red-green stripes, and Tiffany had better watch its little blue boxes' backs.