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.

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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