Q from Time magazine:  When is cultural appropriation appropriate? 

A from your favorite law prof:  Click here.  (Short answer:  Definitely not in this case.  Long answer:  Here's the book -- which I'm told is not a bad beach read, as nonfiction goes.) 

Thanks for asking! 

 Another Burch brand is launching in the fashion space, this time the brainchild of Pookie and Louisa Burch.  And  what have the daughters of Chris and stepdaughters of Tory called their label?  Trademark, of course. 

But today's WWD offers words of caution to those who might read too much into the choice:

About the name: Trademark. Anyone assuming it's a sly reference to the contentious Burch vs. Burch legal battle of last year, in which one of the key issues at hand was C. Wonder's alleged copycatting of Tory Burch products, would be wrong. "I can't even tell you how much I did not think about that. Not even once," said Pookie. "It's actually quite ironic if you think about it, but the name came way before that," continued Louisa. Rather, it was inspired by the idea of a signature look -- your trademark sweater, or your trademark shoes. They toyed with calling it Uniform, but, alas, they couldn't get the trademark.

The denials have the ring of truth, and not only because of the length of the planning process.  After all, naming a brand after a family feud wouldn't exactly create positive associations.  

Then again, Pookie and Louisa and their own golden logo may have been more influenced by the importance of trademarks in the legal sense than the official story reveals.  A search for their "Trademark" marks, in categories ranging from clothing to jewelry to bags to eyewear and even stationery, indicates the name of the company to which they're registered:  21st Century Survival LLC.

Logomania is dead.  Long live the logo!

American designer Perry Ellis, celebrated in a new and comprehensive biography, was a true innovator -- in fashion design and in law. 

Not only did he embrace licensing as a means of extending his empire, but his eponymous company also posthumously trademarked his signature shoulder pleat on men's shirts (and subsequently used in many other garments, from coats to women's jackets).  Quite a cutting-edge trade dress registration for 1997.

Photo of Perry's pleat and drawing for U.S. trademark number 2037960.  "The mark consists of a pleat of fabric which runs from the shoulder to the cuff on each sleeve of a shirt which is not part of the mark but is shown to indicate the position of the mark."

Congratulations to designer Jeffrey Banks -- an American original in his own right, as well as an eloquent advocate of design protection -- and to his co-authors on a beautiful volume lauding the all-too-short life and long-lived influence of one of the pillars of American style.  Enjoy the book, but remember, please don't pilfer Perry's pleats! 

Christian Louboutin's spike heels have become the weapon of choice in a right-wing politician's campaign against the growing influence of Islam in Belgium -- but the iconic shoe designer has taken a legal stand against this unauthorized use of his red sole trademark.

The controversial ad shows what are reportedly the legs of Flemish senator and Miss Belgium 1991, Anke Van Dermeersch, under a black skirt with its hem lifted and demarcations ranging from "stoning" and "rape" at the micro and mini lengths to "moderate Islam" below the ankles and "Sharia-conforming" at floor length.  The image, presumably inspired by the Rosea Lake photo, "Judgments," that went viral earlier this year, is accompanied by a caption reading, "Liberty or Islam?" (Ms. Lake could have a copyright complaint of her own, but that's another discussion.) 

While Louboutin has little control over who buys and wears his shoes, a concern that other famous brands have faced in the past, the lawsuit claims that the use of his signature red soles in the ad tarnishes his image and should be enjoined.  And there may be more than brand identity at stake.  The political campaign appears against a background of tension over the increasingly large and influential Muslim population in Belgium and violent protests last year following the distribution of an American film critical of Islam.  Kenneth Cole's tradition of provocative advertising aside, shoe sales and partisan politics don't mix and match. 

But what about free speech, especially political speech, you ask?  While the nuances of Belgian law are best left to local experts, it is key that this isn't simply a matter of a polarizing politician putting on her favorite pumps, or even an artist appropriating a fashionable trademark, a la Nadia Plesner.  Nor is it unwelcome commentary on or parody of a marketing campaign, like the "Hitler Wore Khakis" response to the series of Gap ads depicting everyone from Humphrey Bogart to Pablo Picasso.  This is a case of unauthorized use of a trademark in unrelated advertising, albeit for a political party and a point of view rather than a product. 

Whether or not the Belgian court issues an injunction against the ad, or indeed is able to stop the spread of the red-soled image, Christian Louboutin's legal decision to put his well-shod foot down makes a public statement of its own. 

New York State Senators Diane Savino and Jeff Klein joined Model Alliance members outside Lincoln Center today for a press conference announcing the introduction of a bill that would extend current state law protection of performers under the age of 18 to include models.  A parallel bill has been introduced in the lower house of the New York State legislature by Assemblyman Steven Otis -- and the bills could pass as early as this week.

American Vogue's March iPad edition is a fresh, surprising embrace of technology, from the Harry Potter-esque preening and posing portrait of Beyoncé on the cover to music clips to a video interview with Alber Elbaz.  The future of magazines is finally here.

Perhaps the most eye-opening part of the issue, however, is a feature by Hamish Bowles on Céline cult designer Phoebe Philo, who not only revived the brand but created a new and influential version of chic minimalism.  She also created the perfect handbag -- but I digress.  The article's descriptions portray her as a woman of contradictions, reveling in her influence but at the same time almost fetishizing privacy and declaring that not existing on Google is the ultimate in chic.  Perhaps there's a reason that neither that handbag nor the house's collections are available for sale online, except secondhand.  Or counterfeit.

Her take on what the article describes as "a veritable industry of high-street imitations" is at once extraordinarily predictable and positively puzzling. 

"I've got friends with copied pieces," says Philo. "My mum's even got a knockoff bag!"

"I love it," she says.  "I'm nothing but flattered."  Like Coco Chanel before her, Philo feels that when you are not being copied, "that's when it's time to worry."

So far, predictable.  The standard "cool" designer response to copying is always to invoke the f-word.  ("Flattered," of course.)  She's even got her Coco quotes down.

The puzzling part is that Céline is owned by LVMH, the world's largest luxury conglomerate and the company that has in past declared a "zero tolerance" policy when it comes to fakes, backing up its position with litigation that, while not frequent, has been more experimental than that of some other storied fashion houses.  (As more than one in-house counsel has told me, "We all watch LV.")  Did someone clear the quotes with HQ?  And was Ms. Philo not aware of the self-correction offered by Marc Jacobs years ago after a similar slip?   

On the other hand, perhaps what we might call Phoebe's philomimesia* is more clever than it appears at first gasp.  (What, you didn't gasp?) 

Mlle. Chanel reportedly tossed off a couple of bons mots indicating indifference to copying, but in reality also exercised her considerable French legal rights when in came to copyists.  The notoriously independent designer even partnered with fellow couturiere Madeleine Vionnet to vanquish a particularly persistent pirate.  In other words, she knew what to say to the press and the public to appear cool as a cucumber about copying but was all business in the courtroom.  (The occasional historical fact comes in handy amid a sea of questionable quotes.  Back in 2006, when I testified in Congress with regard to concerns about copying, one of the opponents of protection tossed off an ill-considered Chanel quote -- and shrank visibly after I politely added historical context.  I don't know that he's been heard from on the subject since -- though that hasn't stopped others from deliberately offering out-of-context quotes.)
 
Phoebe may be as smart and subtle as Coco in managing her audience -- especially since she must be aware that the LVMH legal team keeps busy on behalf of its family of brands, and she did refer to knockoffs rather than to actual counterfeits attempting to appear genuine. 

Or she may simply have been speaking off the cuff.  After all, it's understandable that designers are flattered by admiration for their work, perhaps even when that "admiration" is at the hands of thieves with good taste, though designers with an eye on the bottom line have learned to be wary of the financial fallout from copying.  And as a fellow who'd been convicted of counterfeiting once told me, you really can judge the rise and fall of labels' fortunes by what's most popular on Canal Street. 

Carefully constructed or clueless, the quoted remarks suggest a recommendation to Ms. Philo on which we can all agree.  Phoebe, please buy your mum a real bag!


*No I don't have an encyclopedic knowledge of extremely obscure medical terms like philomimesia, and certainly not of one that as of now appears exactly 5 times in a Google search, only 2 of those in English.  (A chic achievement, in Phoebe's world.)  It's just a word that I thought ought to exist, with a less extreme valence than the medical definition.  I therefore propose that we shorten slightly it to "philomimesis" for convenience, use it in popular parlance to indicate a love of copies or copying, note an ancient Greek etymology (philo + mimesis), add an adjectival form ("philomimetic"), and consider it the perfect pun in context.  Or a contagious social disease. 

New York Fashion Week is all about what's "in" and what's not.  And on the eve of the Fall/Winter '13 shows, Occupy Wall Street has announced plans to enter the fashion fray and proclaim unpaid internships "out." 

Is OWS still around, you ask?  And why has the movement turned its attention from Wall Street and finance to 7th Avenue and fashion, or more immediately to the Fashion Week tents at Lincoln Center? 

Presumably fashion's glamor quotient and the publicity potential provided by the phalanx of photographers outside the tents are contributing factors, but perhaps so is the fact that unpaid internships are particularly prevalent in fabulous fields like fashion, publishing, and entertainment.  The oft-repeated refrain of The Devil Wears Prada, "A million girls would kill for this job," is true not only of poorly paid, entry-level assistantships, but also of internships.  Less-lustrous corners of the labor market like garbage removal and pest control are not besieged with constant requests to take on a colleague's friend's cousin's kid as an intern, please, as a favor. 

And so, from an industry perspective, why not admit interns to the inevitably less sparkling world behind the scenes and let them make themselves useful?

Well, labor law is the reason why not.  Or at least why employers should proceed with caution.

Back in 2010, the New York Times reported that with paid jobs scarce and the numbers of unpaid internships on the rise, the U.S. Department of Labor was stepping up scrutiny according to its 6 little-known and less-heeded criteria for unpaid internships.  Many employers, including fashion folks, got nervous.  Internships continued, however, with requiring school credit becoming a common means of making sure that interns were compensated in some form. Some companies even decided to offer token wages.   

Upon request, we created a Fashion Law Institute memo summarizing the federal law along with a few sample designer "do's" and "don't's."  And, for the most part, the issue was forgotten.  Until former fashion magazine intern Diana Wang sued Hearst publications in a widely publicized lawsuit that has since become a class action.  (In a mild linguistic chuckle, the firm representing the interns is Outten & Golden.)  And then the issue was largely forgotten again.

Now enter OWS, which apparently has an Intern Labor Rights division.  The movement has tried protesting New York Fashion Week before, with embarrassingly minimal turnout.  Will they be more of a presence this coming week, with a specific issue in mind, and will interns rushing backstage with their arms full of designer duds decide en masse to join the picket lines instead?  That is, will there be any impact?  Hard to tell, since veteran fashion editors are accustomed to walking past passionate protests over everything from fur to the designer daughter of an Uzbek dictator.

But at least we may find out what one might wear to protest something as universal as fashion.

Santa's elves aren't the only ones who have been working feverishly before the holidays. The lawyers for Instagram recently posed new Terms of Use for the popular photo-sharing service, and after a public backlash put Instagram on the Internet's naughty list, they're back at their office workshops hammering out another revised draft.

Counterfeit Chic has had several inquiries from fashion folks uncertain about what Instagram's new terms will mean for them.  If the terms as written take effect on January 16, will Instagram have the right to sell their names and likenesses without permission?  Would it be possible for a brand to use a model in an ad without paying a fee?  Could a competitor legally copy a photographed design or trademark?

Although Instagram --or its PR team -- insists that it never intended to do any of these things, the fashion community has a legitimate basis for concern. There are plenty of instances where companies felt free to exploit others' names and likenesses without permission or payment, so why trust a company to respect your rights when its lawyers expressly take them away?

Better watch out ...

As South Park cleverly noted in its classic (albeit crude) episode on iTunes updates, most people don't bother to read online terms of service.  However, the announced changes to Instagram's terms illustrate why this can be a big mistake.  

Posting a photo on any social network site raises at least three significant legal concerns:

• ownership of the photo itself;  
• right of publicity in regard to the use of your name or likeness; and
• privacy and intellectual property rights in any other material posted to or generated through use of the site.

Ordinarily, U.S. copyright law protects photos, and a patchwork of state laws recognizes each individual's right of publicity, limiting the use of your name or likeness without permission.  But accepting terms of service like Instagram's can wipe out those legal protections with a single click.

What's naughty and nice

For anyone wishing to keep control the rights in material on Instagram, the first four paragraphs in the section entitled "Rights" raise substantial problems.

This year's Cyber Monday may be merely part of a cyber shopping season -- for the first time over half of American consumers shopped online during the holiday weekend -- but one thing hasn't changed: the counterfeiting conundrum we might call "cyber shrinkage." 

According to an eye-opening new report from online brand protection firm MarkMonitor, one in five online bargain hunters lands on sites selling fakes instead of legitimate discounted merchandise.  These aren't the shoppers deliberately looking for counterfeits or "replicas," mind you -- these are shoppers using search terms like "discount," "clearance," and "outlet."  It turns out that honest bargain hunters are demographically almost identical to their counterfeit-seeking cousins in terms of education and household income, but there are 20 times as many of them.  That adds up to a lot of otherwise savvy sale shoppers diverted to sites selling counterfeits.  Even worse news for brand owners: sites selling fakes are sticky.  Shoppers stayed longer and were more likely to place counterfeits in their shopping carts, potentially believing that they'd simply found discount deals.

The silver lining in the MarkMonitor report, prepared in collaboration with Nielsen and including both U.S. and European data, is a wealth of information about consumer behavior.  The research project started with an insight of simple brilliance, namely that the methods used in search-and-destroy missions aimed at shutting down counterfeit websites could also be employed to elicit information and develop constructive brand strategies.  Trademark lawyers regularly describe their work in terms of the arcade game Whac-a-Mole -- counterfeit sites pop up, intellectual property owners smack them down, the fakes pop up again elsewhere.  The end result?  A lot of whacked moles -- or counterfeiters, as the case may be.  But to extend the analogy, why not take that data and make a moleskin coat?

Among the report's general recommendations is the suggestion that brands -- including luxury labels that don't engage in online sales -- buy terms like "discount" in order to direct search traffic and educate consumers.  The report also suggests purchasing domain names with bargain-related terms before counterfeiters do.  A conversation with the MarkMonitor team indicates that the strategic potential of this data, and the more specific details available to individual companies, is even more extensive.  Knowledge that consumers in particular locations are searching for deals on specific brands or product categories (footwear turns out to be a universal favorite) can inform plans for a diffusion line, a partnership with a flash sale site, or the establishment of an outlet.  After all, with the increasing popularity and sophistication of online bargain shopping, it doesn't pay to let counterfeit sites steal away one in five potential customers.

(Note:  No actual moles were harmed in the preparation of the MarkMonitor Shopping Report.  But mammals engaged in underground counterfeiting activities may be another story.)

When Chris Burch's first C. Wonder store opened its lacquered lime-green doors, just around the corner from the distinctive lacquered orange doors of the original Tory Burch store, the visual association was striking.  The obvious question, of course, was, "Wonder what Tory herself Cs?" 

Curious consumers didn't have to wait long to find out.  In the words of yesterday's legal salvo, a "knockoff store." And the pictorial parade doesn't stop at the door -- but we're getting ahead of ourselves.

For those who haven't been following the nascent retail legal battle of the former Mr. & Mrs. Burch, each of whom still owns a substantial stake in the Tory Burch company, the opening shot was actually fired by Mr. B last month.  The parties had apparently been involved in discussions regarding the series of similarities between the Tory Burch trade dress and the design of the new, cheaper chain and its merchandise.  This resulted in some changes to subsequent C. Wonder outlets, evidently including the elimination of those green doors, but the two sides had yet not reached a written agreement -- a situation about which potential investors became aware and expressed reservations, to Chris Burch's dismay.

Instead of continuing to negotiate, Chris filed a complaint in Delaware state court, focusing not on Tory's concerns regarding copying but on blame for the delayed sale and on a series of allegations regarding the actions of the Tory Burch board.  (It's hardly a dry and dispassionate corporate recital, however.  From the use of the term "vicious" in the first line to repeated references to the former couple's respective prior experience, the document puts the "complaint" back in "legal complaint."  In 2012, who goes to court and argues in essence that the woman whose name is on the label was really just the little woman?  According to the company website, that should be the little CEO, please.)

Yesterday, Tory filed an answer to the complaint, denying its allegations, as well as an extensively illustrated series of counterclaims.  Personally, I keep picturing the potentially pilfered pouf among other decorative elements and products -- in between reading descriptions of everything from breach of fiduciary duty and contract to unfair competition.

Tory Burch (L) and C. Wonder ottomans

In all, detailing and dissecting the claims and counterclaims would require a far longer discussion, but a core element of the case relates to what not only consumers but also potential investors in the Tory Burch company see when they see C. Wonder, and how this might affect their assessment of  the original company's value.  In today's world, isn't the existence of an alleged copycat chain run by someone with extensive insider knowledge of the original something that an investor would want to know?

As if this case weren't colorful enough, WWD today offers extensive quotes from Chancellor Leo Strine, who has apparently already called this case "a drunken WASP fest."  He's also reportedly opined -- and all this merely at a scheduling hearing -- that "there's really nothing all that new about bright clothing and all that kind of stuff," a point of view derived from his experience with "all the preppy clothier cases" he's been assigned in the past and his claim to cultural immersion in preppy styles.  (No doubt the court will become better acquainted with the signature Tory Burch style versus preppy classics as the case progresses. Very few New England homes have orange doors, for a start.)

Meanwhile, the designers of C. Wonder may not have sated their alleged hunger for borrowed trade dress.  A walk by the windows of one of the newer outlets might lead the mind of a a true WASP to wonder...bread.

UPDATE, November 8, 2012: Yesterday the Delaware Supreme Court chided the garrulous judge for his digression in another case. Sounds like he'll keep courtroom observers -- if not the parties -- in stitches.

Once again, the little "fashion copyright" bill that could has been made it through the Senate Judiciary Committee and is headed for the full Senate!

This morning the committee briefly discussed the Innovative Design Protection Act, S. 3523 (IDPA  text here; short description here).  The only skirmish was over a proposal by Senator Michael Lee (R-Utah) to add a "loser pays" provision -- to a bill that is already more narrowly tailored than ever, with more experimental deterrents to litigation and a shorter term of protection than any intellectual property law ever created, anywhere, period.  The wisdom of the bill's primary co-sponsor, Senator Chuck Schumer (D-NY) prevailed, and the proposed amendment was voted down before the final bill moved forward. 

If only all government actions were so quick and efficient!  (Although one wonders whether Senator Orrin Hatch, also R-Utah and the primary Republican co-sponsor of the bill, may give his junior colleague a dressing down.) 

As New York Fashion Week enters its final days, Spring/Summer '13 will be remembered not only for runway trends -- including a blizzard of white, splashes of acid green and orange, relaxed trousers, terrific tailoring, and some especially stunning stripes -- but also as the the season when the legal profession took note of the fashion calendar.

IN THE U.S. CONGRESS today, Senator Chuck Schumer introduced the newest version of the fashion design protection legislation originally proposed in 2006 and currently pending in the House of Representatives.  WWD broke the story even before the official text was made public; since many of you have asked, I've shared it with you here.  Happily the title isn't such a mouthful this time; the IDPPPA is now simply the IDPA, the "Innovative Design Protection Act."  Other than the loss of a couple of superfluous Ps and added exceptions for importers and internet service providers, the biggest changes in in the bill from the House version and the previous Senate version are the following:

• a provision requiring detailed written notice to alleged infringers, and
  
• a 21-day moratorium on commencement of an action after that notice.  And no, damages won't accrue during those 3 weeks.

Once more unto the breeches, dear friends, once more! 

THE U.S. COURT OF APPEALS FOR THE 2ND CIRCUIT was even more dramatic in its timing, waiting until the first day of Fashion Week to finally release its opinion in Christian Louboutin v. YSL.  Christian justly kept his red sole trademark, albeit with a carveout for completely monochromatic red shoes like YSL's; the district court's overreaching attempt to ban all single-color trademarks in fashion was tossed out like a bad impulse purchase.  One small sigh of relief for a man, one giant sigh of relief for the fashion community.  Now we can all put up our red soles and rest.

Fashion law even made it to arguably the world's largest stage, with a FASHION LAW INSTITUTE show in the tents celebrating our Fashion Law Pop-Up Clinics, as well as our 2nd anniversary.  Congratulations to Dimitry Said Chamy, EMC2 Emmett McCarthy, Gemma Redux, Keely Rea, Kelima K, and Vespertine on a beautiful presentation, and thanks to all of you who joined us!  

And to punctuate a week during which legal protection of fashion designs was right on trend, the COUNCIL OF FASHION DESIGNERS OF AMERICA not only partnered again with eBay on "You Can't Fake Fashion" tote bags but also released a new version of its Design Manifesto. 

Quite the fashion law week!

Although the legal battle between Christian Louboutin and YSL is the early frontrunner for intellectual property and fashion dispute of the decade, forcing many otherwise fashion-phobic attorneys to take a stab at pronouncing the parties' names, the celebrations surrounding Louboutin's 20th anniversary continue.  

Or if not all soles, at least the red ones -- courtesy of Christian Louboutin, who celebrated 20 years and the release of his new book last night at Barneys New York with a chorus of well-shod sartorial saints.  

When the New York Times' Eric Wilson listened to Oprah Winfrey and Ralph Lauren chat for charity, one exchange stood out: 

"How do you keep reinventing?"

"You copy," he said. "Forty-five years of copying, that's why I'm here."

Of course, everyone knows that the signature looks of the Ralph Lauren family of brands are inspired by classic Americana -- with an occasional detour around the globe -- but coming from the guy who was on the losing end of the best-known design piracy case of the late 20th century, the admission strikes a chord. 

Honestly, honesty?  Now, when the U.S. may be on the brink of finally passing a law that, while it wouldn't come anywhere near the level of the French protection that wrangled Ralph, would have a similar effect in some cases?   

Was it a passive protest or conscience-clearing comment?  You decide.  (And in the meantime, Ralph's crack team of attorneys, a truly talented collection, will continue to be hard at work protecting his marvelously strong marks.)
 

Counterfeit Chic has two reasons to cheer for the U.S.Chamber this fall:  an informative visit to the Fashion Law Institute from a group of Chinese Supreme People's Court judges and a newly issued letter in support of the Innovative Design Protection and Piracy Prevention Act (IDPPPA), currently H.R. 2511. 

The pithiest part of the letter may be the statistics, which refer to "14,000 companies in the fashion and apparel industry in the U.S., directly employing approximately 4 million Americans and indirectly employing countless others," though I confess a personal partiality to my punny "narrowly tailored" thumbprint.  (Spotting the meme is always amusing, though it's a pity it can't be in the actual legislation.)  Of course, as long as we're aggregating numbers, let's not forget the 312 million Americans who regularly wear clothes, in some fashion.  Still think it's frivolous?

And the most memorable quote from the China-U.S. roundtable may be from the lovely Senior Judge Xia Junli, who concluded a discussion of comparative fashion design protection by saying, "I hope your bill passes...so that we can come back and study it."  Yes and yes!

Of course, it sounds like China already has better formal, albeit untested, intellectual property protection for fashion designs than the U.S. does.  (Who do we think we are, anyway, a global leader in IP protection?)  Perhaps the letter from the U.S. Chamber of Commerce will help clean things up on this side of the world!   

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

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? 


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.