Thursday, March 22, 2012

Louis Vuitton-infringing future lawyers of America

Louis Vuitton v. U Penn Law School

I previously spoke of my admiration for Louis Vuitton's constant policing of its trademark (since it helps ensure the integrity of their mark and gives me continued hope for a career in fashion law). Well, I am happy to report that LV's lawyers are up to their complaining protecting again.

The University of Pennsylvania Law School's IP Group hosts an annual symposium on fashion law. This year, they developed a flyer reminiscent of LV's Toile Monogram. Here is the poster:

Seems innocent enough right? Maybe even flattering?
   ...well, clearly not to this fashion house.

Louis Vuitton's lawyers* alleged that
"this egregious action is not only a serious willful infringement and knowingly dilutes the LV Trademarks, but also may mislead others into thinking that this type of unlawful activity is somehow "legal" or constitutes "fair use" because the Penn Intellectual Property Group is sponsoring a seminar on fashion law and "must be experts." People seeing the invitation/poster may believe that Louis Vuitton either sponsored the seminar or was otherwise involved, and approved the misuse of its trademarks in this manner."
LV goes on to mention how they do support education to the public on intellectual property and that they are a corporate sponsor of Fordham Law's Fashion Law Institute. This makes me wonder, how did LV discover UPenn's poster. Maybe from someone over at Fordham Law? ;-P

While I commend LV not being hesitant to send out a cease and desist letter, I do not agree with the allegations.
  • Infringement:
    • I don't think a judge would find trademark infringement here because although I think the school was making a play off of LV because the Toile Monogram is so famous, showing a parody after the fact/making a social comment is fine after the fact as long as you can verbalize the parody
    • Penn was not using the copied work as a source identifier
  • Confusion:
    • I believe there is a Circuit split on whether likelihood of confusion is a question of fact (clearly erroneous review) or of law (de novo review) 
    • The IP Group shows a list of their sponsors and Louis Vuitton is not on there so I don't think they could get a survey of people who would honestly claim they think otherwise
  • Dilution:
    • Here is a test for dilution by blurring: degree of similarity, degree of distinctiveness, intent to create association, actual association  
    • UPenn claims their poster is a parody, this is an exception to dilution
    • Where a parody is so similar to the famous mark that it could be construed as actual use of the famous mark itself, then it could be dilutive
    • U Penn cannot claim he non-commercial use exception since they offered CLE credit, making a commercial use link, but the parody exception may work for them
      • Parody is relevant to the overall question of whether the use is likely to impair the famous mark’s distinctiveness. Here it clearly seems the parody would not impair LV
    • Dilution does not require a showing of consumer confusion and so lacks built-in 1st Amendment safeguards that infringement claims have
I love that in his response, general counsel for Penn Law invited LV's counsel to attend the symposium.
The (possibly passive aggressive) letter from Penn also tells tells that
"the students have invited some of the in-house counsel from some of [Louis Vuitton's] peer fashion companies to speak on the panels..."
...Does this mean that the school reached out to top fashion houses but not Louis Vuitton? But they like LV enough to play off of LV's trademark? Tsk, tsk. :)

Read the entire cease and desist letter (posted on U Penn's website) here.
Check out U Penn's reply (also from U Penn's website) here.

Btw, what do you think of my new layout? I changed to a more simple one. 
See my original one here: 

♥ Thanks for reading and supporting my blog! 

*I love that the last name of the lawyer who signed the cease and desist letter is "Pantalony." In French and Spanish the translation of pants is pantalon and Mr. Pantalony is working in fashion law-haha. Am I the only one amused by this?

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