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No Fooling

Among many human societies in general and Western culture in particular, we respond to literal copying as "bad" and creativity inspired by earlier works as "good."  To some extent, the law reflects this generalization.

But in legal terms, what is an infringing copy and what is simply the result of "inspiration"?  Over at Handbag Fetish, Aznstarlette wonders whether www.bagdesigns.net can get away with selling handbags marked with designer logos by adding the following disclaimer:

What is an “Inspired Designer Handbag”?

Please be aware that most internet sites do not carry the highest quality, but we do. It is very difficult to get this AAAAA quality.

An inspired handbag is designed to create the look of an authentic designer handbag to 99.9%. In no way do we represent our handbag as authentic or affiliated with any brand names. We simply ask that you compare the quality of our handbags with any other. All of our handbags are made with the materials of the originals. You will be pleasantly suprised with the quality of the bag you receive.

Nice try.  If it looks like a duck, walks like a duck, and quacks like a duck.... 

In other words, just calling a bag incorporating an unauthorized trademark "inspired" doesn't make it legal.  In fact, even without the trademark, a line-for-line copy of a very recognizable bag (like the Fendi Spy or Balenciaga Le Dix motorcycle bag) might be considered trade dress infringement.  Think of it this way:  a law enforcement officer will not hesitate to seize a kilo of cocaine marked, "The enclosed is not intended to be a controlled substance." 

Or as Rene Magritte might put it:

(OK, OK, the idea of The Treachery of Images is that a picture of a pipe is not actually a pipe -- but you get the point.  Reality cannot be altered by a false disclaimer.)

So no, many of the designs offered online are NOT legal -- which is why these sites appear and disappear so quickly. 


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