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She Who Laughs Last

Jessica Kagan Cushman is the type of woman who , when life gives her lemons, not only makes lemonade -- she opens a lemonade stand, franchises it, launches an IPO, and builds a villa in the middle of a Mediterranean lemon grove. 

So it is that when, as Counterfeit Chic readers will recall, Jessica  suspected Chanel of knocking off her wittily inscribed scrimshaw bracelets, she went into action.  First came her amusing scrimshaw response, a one-off "Ripped off by Chanel" bracelet.  Then she launched a line of less-expensive resin bangles to satisfy her new fans.  Now, Stiletto Jungle reports that Jessica has re-created her response to Chanel in black resin and made it available through ShopBop.  Aren't creative feuds wonderful?

As Counterfeit Chic noted at the outset of the dispute, Jessica most likely never had any legal recourse against Chanel.  While jewelry designs can be protected by copyright, the shape of these bracelets is not original.  What is original with Jessica is the clever combination of scrimshaw technique, bangles, and stylish pop phrases.  The general idea of printing a motto around a bracelet, however, cannot be protected. 

If, however, as many in the blogosphere suspect, Chanel appropriated the idea, Jessica is free to say so.  There's always the possibility that Chanel will challenge the truth of her assertion and scream defamation, but at least Jessica has editorial backup.  And does Chanel really want any more negative publicity on this issue?

What about Jessica's use of "Chanel" on her newest commercial creation?  The trademark is clearly used in a critical fashion -- "Ripped off by Chanel" -- and not as a source identifier.  Moreover, Jessica's own trademark appears prominently on the bracelet, further reducing any likelihood of consumer confusion. 

Under U.S. law, this type of nominative fair use is permitted, so long as Jessica hasn't used any more of the Chanel mark than necessary.  The fashion house might quibble over the use of the distinctive Chanel typeface, as opposed to some other generic lettering, but Jessica's ability to invoke First Amendment free speech protections is fairly powerful.  And a claim by Chanel that Jessica had diluted its admittedly famous mark would be subject to the same analysis.  (Of course, not all nations' laws offer the same leeway, and in a non-English-speaking country, consumers might be less likely to understand the critical nature of Jessica's phrasing.  Think of the varying results of trademark owners' challenges to domain name ownership of "sucks" sites.) 

What would Mlle. Chanel herself have thought of all this had she been in Jessica's shoes?  Certainly the champion of fake pearls would at least have appreciated the idea of plastic knockoffs of ivory bracelets -- and, as a businesswoman, she would've wanted to capture both markets for herself.  As to the issue of copying her original ideas, Coco was quite coy, making public statements in favor of copying while privately suing at least one notorious design pirate under applicable French law.  In the absence of legal recourse, however, one imagines that the queen of the stylish bon mot would've displayed wit equal to Jessica's. 

And if the modern house of Chanel really did rip off Jessica?  Presumably its founder would be as disappointed as its fans.