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Knocked Off or Knocked Up?

When is a knockoff merely an inferior copy of the original and when is it something more?

Ever since writing about Michael Kors' upscale version of the ubiquitous Jack Rogers "Navajo" sandal, I've been thinking about the relationship between authenticity and quality in the realm of fashion.  (Of course it's not at all clear that the "Navajo" sandals are actually Native American, but that's another kind of authenticity -- part of the subject matter of my book, in fact.) 

When experts give advice about distinguishing real from fake, one of the key elements is usually quality.  Loose stitching, crooked seams, poorly attached tags?  Probably fake. 

But what about luxury copies -- or more often interpretations -- of mass market products?  Check out the classic Bean Boots by L.L. Bean (below, left), going toe-to-toe with Manolo Blahnik's well-heeled 1994 version:

Both are celebrated as examples of fine style and craftsmanship, but the Manolo is a deliberate (and far more expensive) copy, albeit a transformative copy.  And that's only one case:  both Blahnik and Norma Kamali before him have created high-heeled versions of the iconic black-and-white Chuck Taylors, for example. 

So how is a luxe reinterpretation different from a Canal Street counterfeit?  In the case of the Manolo boot above, the designer isn't trying to fool anyone, either with the design or with a fake label.  The referent is obviously L.L. Bean, but the transformative details -- high heel, pointed toe, leather in place of rubber -- are among Blahnik's own signatures.  In addition, the two styles retail at quite different price points and presumably serve different functions, though one might imagine an eccentric matron pruning roses in her Manolos.  In the end, the high-fashion version is an homage to the original and to the timeless New England style that it represents, as well as a clever visual pun.

Ah, but is the luxury version legal?  Under current U.S. law, copying a design is not generally actionable, and the example above isn't even an exact copy.  End of story?  Not necessarily.  In theory, L.L. Bean might have claimed that Manolo Blahnik had infringed on its trade dress.  The design of the Bean Boot is, after all, so closely associated with L.L. Bean that it arguably indicates an association with the company (i.e. has developed "secondary meaning").  On the other hand, 90mm heels are not exactly part of L.L. Bean's oeuvre, so the likelihood of consumer confusion is somewhat remote.  Since I don't know of any actual objection by L.L. Bean, or a licensing agreement for that matter --  please let  me know if you've heard otherwise -- we can only speculate about a possible legal outcome.  (Personally, I hope that the nice folks up in Maine had a good laugh and registered a boost in sales to fashionisti.)

All of which leaves the world of creative "knockups" pregnant with possibilities, legal or otherwise....

Comments

Just discovered this site via murketing, and loving it. Half to say I'm not sure the LL Bean example here is appropriate, as those boots are hardly unique to Bean. I've always known them as "duck boots" and you can get nearly identitical versions from a variety of companies. Bean is clearly the most popular of them, but there is no indication they claim to have invented them.

Abe, thanks for the message, and for your interesting thoughts at http://www.abstractdynamics.org/!

Your comment piqued my interest, so I went hunting for the history of the "duck boots." (We always called them that, too.) According to the company website, Leon Leonwood Bean himself developed (invented?) them in 1912, calling them "Maine Hunting Shoes." A virtual trip to the U.S. Patent & Trademark Office website doesn't yield anything that far back, but in 1921 L.L.B. received 2 patents on technical improvements to the shoe, and another in 1927. Those patents have long since expired, but they do indicate that at least some elements, if not the whole design, were original.

As for whether L.L. Bean could now claim trade dress protection in the boots, it depends on whether the design has been repeated so many times that it's considered generic or whether consumers associate it with the company. Short of a survey, hard to tell for sure -- but the company certainly makes a point of having the "original" version.

Of course, in a world where Ray's Pizza co-exists with Original Ray's, Famous Original Ray's, etc., it makes sense to be skeptical on occasion....

Perhaps the Blahniks could be construed as a satire of the Bean boots? I know I'm projecting some copyright ideas onto a TM issue, but I can't help but see the high heels here as a reverse burlesque..the city mouse mocking the country mouse.

I don't know if TM has room for such non-verbal mockery, but I'm attached to the theory, since it's my pet copyright fair use defense of the Numa Numa guy (I'd characterize his dance as a satire of the song in the background.)

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