FUR-rocious PETA renames the Olsen twins to Hairy Kate & Trashley

Mary Kate and Ashley Olsen released a $16,900 fur patchwork backpack. I think they were rebounding from The Row's alligator backpack, which despite the $34,000 price tag flew off the shelves. I doubt they imagined they would end up as stars of PETA's Full House of Horrors video.

See more at peta2.com! 

The two essential elements of infringement are copying and improper appropriation.
Wondering why PETA may get away with making this video although the creators of Full House (likely) did not agree to such use? Well, copying is permissible if it is excused through a defense like fair use (discussed here), independent creation or if only unprotectable elements are copied. 

Here, PETA's Trollsen twins campaign is a clear parody.* If you think PETA, in all of its fur fury, may have taken too much of the orginal Full House show I want to point you to when 2 Live Crew did a parody of Roy Orbison's "Oh, Pretty Woman."**

The bloody mess of a dress is definitely a Carrie at Prom look but also somewhat of a July 4th look. So, if you have to go to work and you're wondering what to wear to celebrate July 4th, perhaps my PETA styling will motivate you.

On PETA's site, hovering over the items that are dripping blood tells you how the animals died

Okay, aside from looking like a zombie, Ashley Olsen Trashley looks like she had an unfortunate surprise from every woman's favorite monthly visitor.

While styling Mary Kate Hairy Kate, I realized I previously sported a similar look:

Outfit details
Me: Gucci; M-K: Design by PETA   :)

Okay, I do not actually mean to poke fun of animals that are killed for fashion or promote the killing of animals. With so many things to worry about in life, I don't currently include animal rights issues on my plate--I just include animals on my dinner plates. But if you are into these issues, please feel free to school me on them!

Let me know what you think of PETA's campaign!

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Here's the mess of a bag that got PETA all worked up against the twins:

Source: purseblog.com via Fashion on Pinterest

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*A parody makes fun of an original work by imitating and distorting it; audience must recognize the connection between the parody and the original, which requires some copying of the original
** The court held that even though 2 Live Crew’s parody took the first line of lyrics and characteristic opening bass riff from the original and therefore made the heart of the original the heart of the parody, this was purposely done “to purloin a substantial portion of the essence of the original” Campbell, 510 U.S. at 587

Infringement for the love of fashion

Consider this another one of my educational intellectual property posts. The take away is similar to my previous fashion law posts: in fashion, imitation can be seen as infringement--not flattery.

I found these blinged out iPhone cases on an Etsy's seller's page and made a collage out of them for your viewing pleasure. From the looks of it, the seller, slave2beauty, is truly talented. Unfortunately, these glam cases are okay for personal use but turning a profit on someone else's intellectual property? Not so okay.

I am reposting these images under my Fair Use rights, not to be confused with copyright infringement! 

    
How do these cases tie into intellectual property (IP) issues, and particularly fashion law?
Well, if you have not guessed it, trademark law is implicated here.

I wonder how long this user will make these cases before receiving a cease and desist letter*. Not long if someone forwards my blog post to Mr. Pantalony (the lawyer who sent U Penn Law School a cease and desist). Slave2beauty opened up shop March 6, 2012 so it is likely that her work just has not yet come to the attention of relevant IP owners. I think Louis Vuitton and Lady Gaga rigorously police their brands, so the death of these cute infringing phone accessories may come soon.

Would you buy accessories like these even though they do not support the brand owner? 


I am not afraid to say that I report on counterfeiters all the time. Maybe one day I will get paid for it too! ;) Lucky for Etsy companies, Etsy asks that claims of infringement be signed by the IP owner or person authorized to act on behalf of the owner, which is on par with the Digital Millennium Copyright Act.

I do not feel badly about the infringer getting stopped from profiting off of these works but I do wish there were more flexibility in the fashion world, wherein a person like this Etsy seller could easily pitch ideas of these creations to brands. It is just that allowing/licensing people to trademarks is dangerous for brands. It is dangerous because brands may lose track of how their trademarks are being used and even if they develop a contract with a second user, wherein the IP owner is not liable for torts arising from the second user's products, the IP owner can get a tarnished image from bad use. Also, if trademark owners do not exercise quality control they lose their trademarks.

A trademark owner who wants to license use of IP must also be careful that the second user will not be considered a franchisee. A franchising relationship would be bad for the IP owner because it is difficult to get out of such a channel relationship: If a court determines that it is a franchise agreement, it is hard not to renew the contract when it expires. A front-end negative consequence of a determination that a franchise agreement exists is that the trademark owner is supposed to provide the franchisee with  an offering circular with all risks. The IP owner can get in trouble for not providing proper franchising material.

Although this Etsy seller might think she is paying homage to popular brands like Louis Vuitton, Chanel, MAC cosmetics, Swarvoski and Lady Gaga, using these trademarks without permission of the trademark owner is trademark infringement.

Any of these aforementioned brands can bring a successful lawsuit against someone making products like this Etsy user. Let's say the user thinks she is not doing anything wrong because she is not actually making a counterfeit of an existing item. To that, I say trademark infringement is not synonymous with counterfeit. When a trademark is used in connection with products or services in a way that may lead a viewer to think the product is connected to the brand the possibility of a problem exists. The person doing the buying does not have to be the party being tricked. Like with these phone cases, the people buying from Etsy most likely realize the lack of connection to the designer. Yet someone who sees this case in use by another person may mistaken the case for being one made by the brand. If quality is a problem then the viewer may falsely attach the negative quality with the brand. On the other hand, if the brand sells or wants to cell such accessories the products pictured above might compete with the brand. This is one of those situations where ignorance of the law is not an excuse.

Do you agree that products like these hurt the brand owners? 

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*a cease and desist letter is a notice sent by the IP owner or representative to stop use of IP. See this post.

Guess who copied Gucci! Yes, Guess!

Fashion law update on the case of Gucci v. Guess

The Guess sneaker above was found guilty of many counts of trademark dilution ;)

Super quick recap: Three years ago, Gucci filed a trademark infringement lawsuit against Guess. For more info read my first post about this case (here).

Super quick update: Yesterday, Guess was ordered to pay Gucci $4.66 million (of the $221 million sought) for trademark infringement!


Judge Scheindlin (Judge Shira Scheindlin, not Judge Judy Sheindlin), found Guess guilty of four out of the five trademark fashion law crimes alleged by Gucci. Guess's use of script mark was the only thing that got away here because script fonts are extremely common in the fashion industry.

I previously discussed that Gucci might have some hurdles over the statue of limitations. Judge Scheindlin's opinion explained that 

"although the Lanham Act does not include a statue of limitations, the Second Circuit has held that the six-year limitations period from New York State fraud law applies." However, as trademark infringement is a 'continuing wrong.' the statute of limitations defense only applies to bar monetary recovery beyond the statutory period, and does not limit the availability of injunctive relief." 

As to dilution, since Gucci had no evidence of actual dilution, the Judge granted summary judgment on this point.


I will not regurgitate what you can read in the opinion (here). This opinion was a quick and fun read. If you enjoyed my previous posts discussing likelihood of confusion then you should take a look at how a Judge goes through the different factors.


...But what does it all mean?
Well, aside from the money Guess will have to shell out to Gucci, it will have to spend a lot more pesos to change up its trademark infringing designs and logos. The fashion world shall say goodbye to Guess's interlocking G logos. But do not fret! Guess will likely find new "inspiration" for us to discuss!

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Gucci v. Guess fashion law fun

Another case of when imitation is not the sincerest form of flattery.

Three years ago, Gucci filed a trademark infringement lawsuit against Guess. Unfortunately, Gucci's then in-house counsel was not up to date with his bar registration. I am not sure why it took three years later for this case to continue but at the end of March the case finally made its way into federal court in Manhattan before Judge Shira Scheindlin. If only they had waited 1/2 year longer and hired me, this could have been such an easy win for me. I love Gucci (the products, history, and salespeople alike--except for one nasty woman I encountered in Venice).

The issue in this case is Guess's blatant use of Gucci's products for imitation inspiration. Particularly, Guess's use of the square G and quattro G designs along with post-sale customer confusion. Guess's footwear licensing company, Marc Fisher Footwear, copied Gucci's trademarks and recognizable trade dress: the diamond-shaped pattern, green and red stripe design, and cursive font.

Guess's defense: It took inspiration from many designers. It does sound like something silly to use as a defense but with so much evidence, like e-mails from 1995 to 2008 saying that Marc Fisher Footwear mentioned sending Gucci fabric samples to Guess's fabric supplier to use for replication and an admission that $75,000 of Gucci products were purchased by Guess, the best Guess could hope for is to show that they took small ideas from many designers rather than too much from one.

 You be the judge: Was Guess inspired by Gucci or did Guess purposely copy Gucci? 

Gucci's only problem in my opinion may be that so much time has gone on with Guess infringing Gucci. As I mentioned previously, when a brand knows that its trademark is being misappropriated it needs to react in order to maintain the integrity of its mark.

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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:

Source: pennip.org via Fashion on Pinterest

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 1^st 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: 

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*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?