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July 30, 2008

Alien Sedition?

When daring designer Vivienne Westwood and Sex Pistols manager Malcolm McLaren were selling bondage tartan and safety pin couture from their London boutique in the 1970s, their message was pure punk:  shocking, subversive, and definitely anti-establishment.  Fast-foward three decades and those spiked collars are looking a lot more domesticated, with Christie's planning a fall auction of the clothing and art publisher Rizzoli scheduled to release a book on the subject.  This new appreciation has attracted museums and celebrity collectors -- along with allegations that a number of vintage items bearing the Seditionaries label are, in fact, fake

After artist Damien Hirst purchased £80,000 (almost USD $160,000) worth of Seditionaries clothing from Simon Easton, a.k.a. Punk Pistol (caution:  some images NSFW), McLaren paid Hirst a visit.  Based on the fabric, stitching, and in particular the large number of items, McLaren declared the clothing counterfeit -- and set out to protect the public from getting punked.  Easton continues to insist on its authenticity.

So, which of these dueling Pistols is the real seditionary, McLaren or Easton?  Is it more subversive to create countercultural clothing or to undercut its now-iconic status by flooding the market with fakes?  In legal terms, a trademark is a trademark -- but the ingenuous invocation of law to protect Seditionaries is a ironic twist.

Via New York Daily News, WWD

July 25, 2008


Is fast fashion a virus?

Someone in Berlin during the city's recent fashion week certainly seemed to think so:

Perhaps that makes couture the cure.  (If only life were so simple....)

Via the Wooster Collective

July 24, 2008

Matched Set: Senate Considers Enforcement of Intellectual Property Rights Act of 2008

Driving to the big city and loading up the trunk with counterfeit handbags for a purse party is about to get a little bit riskier.

Today Senators Patrick Leahy and Arlen Spector, along with a bipartisan group of colleagues, introduced the Enforcement of Intellectual Property Rights Act of 2008, a companion bill to the somewhat more elegantly named PRO-IP Act, which passed the House back in May.  (OK, the House version's full name is the Prioritizing Resources and Organization for Intellectual Property Act of 2008, but good acronyms are hard to come by.)  It seems someone figured out that having IP laws on the books is one thing, but actually enforcing them is quite another. 

Among the bill's additions to existing law are the following:

  • Authorization of the Attorney General to bring civil, not just criminal actions -- a potential benefit to intellectual property rights holders who now have to file such lawsuits on their own dime;
  • Enhanced penalties, including doubled statutory damages for counterfeiting (to $1,000 to $200,000 for use of a fake trademark and to $2m for doing so willfully);
  • New forfeiture provisions for property used to violate intellectual property rights -- like that car used to transport counterfeit handbags or a computer used to download music;
  • More enforcement resources and personnel at the local, national, and international levels, including placement of IP law enforcement coordinators in hotspots overseas; and
  • A federal Intellectual Property Enforcement Coordinator, a.k.a. a Copyright Czar. 

The bill isn't law yet -- but with both the House and the Senate focused on IP enforcement, the summer is heating up. 

July 22, 2008

Knockoff News 80

A periodic collection of news about counterfeits, fakes, knockoffs, replicas, imitations, and the culture of copying in general around the globe:

And finally, what's the logical response from a pseudonymous street artist whose countercultural creativity has spawned a legion of pretenders to the throne, as well as an active but unregulated resale market for his work?

For Banksy, the answer is the establishment of an official certification board, a.k.a. Pest Control.  After all, nobody wants to buy inauthentic illegal art. 

July 21, 2008

No, No, Naf Naf

Isabel Marant Fall 2006According to a French court, the cheap chic chain Naf Naf's copy of an Isabel Morant dress was, well, a bit naff

Despite minor differences between the original puff-sleeved black dress (on the runway, left) and the "slavish" copy, the chain and its supplier, Paris Paris, were ordered to pay the designer 75,000 euros (approx. USD $120,000).  The court also criticized Naf Naf for following in the wake of Isabel Morant's success and attempting to profit from the designer's creative investment without untying its own purse strings.  Both dresses were in stores during the Fall 2006 seasion, with the original priced at 250 euros and the knockoff at only 69.90 euros. 

An unusual decision?  Only in the sense that it actually went to court.  According to Counterfeit Chic's sources, European designers, who enjoy legal protection against such plagiarism, regularly settle similar complaints against fast fashion companies. 

U.S. designers, of course, still lack such legal protections -- at least until the next Congress convenes and the Design Piracy Prohibition Act is reintroduced. 

Via WWD.  Thanks to the indomitable Steven Kolb for the tip!

July 16, 2008

China Chic: An Economic Development Forecast

This week's New Yorker cover depicting Barak and Michelle Obama as Muslim terrorists is certainly controversial -- with die-hard liberal friends like this editorial board, who needs enemies? -- but the magazine's content isn't exactly plain vanilla either. 

Patricia Marx shops Shanghai, extolling the virtues of fraudulent goods of all varieties:  custom-made knockoffs, fakes sufficiently convincing to appeal to the likes of Yao Ming and Celine Dion, and the usual range of misspelled counterfeits.  The take-away quote comes from "a sage in her twenties" who told the reporter, "In Los Angeles they have real Birkin bags and fake boobs.  In Shanghai, it's the other way around.

But given global economic trends, that's only a matter of time.

July 14, 2008

Tiffany Loses Lawsuit against eBay

eBay tumbled Tiffany's carefully stacked legal arguments today, with the court concluding that the jewelry giant must bear the burden of policing its own marks against online counterfeiters.  Opinion here  -- discussion to follow.


Tiffany v. eBay: Today's the Day!

Some people obsessively click "refresh" when trying to buy concert tickets.  Others can't stop returning to Drudge for election news.  For Counterfeit Chic, it's the latest in the world of law & fashion.

On Friday, that electronic docket-stalking finally turned up Judge Richard J. Sullivan's handwritten notice of intent to release his much-anticipated decision in Tiffany v. eBay -- today! 

The auction giant has been battered and bruised in similar cases in France, but will a U.S. court also hold eBay responsible for the sale of counterfeit goods on its site?  We'll keep you posted.  In the meantime, check out WWD's review of the dispute (thanks to Matt Lynch for the quotes!). 

July 11, 2008

Euros and Scents: More on LVMH v. eBay

Time is money in eBay's ongoing battle with LVMH, as a French appellate court upheld a fine of 50,000 euros per day for as long as the auction site continues to allow sales of several LVMH perfume brands.

This ongoing fine is on top of the 38.6 million euros already awarded to LVMH, primarily to compensate for the sale of counterfeit luxury products on eBay, but also as a penalty for the unauthorized sale of authentic fragrances, including scents from Dior, Givenchy, Guerlain, and Kenzo.  Like other luxury companies, LVMH carefully controls the distribution of its fragrances under the theory that a rose does not smell as sweet -- nor does it command as high a price -- when it's sold alongside lesser blooms.  In addition, it's easy for counterfeit versions to creep into unmonitored supply chains -- hence the periodic news stories about fake eau de toilette that turns out to contain, well, just that.  Distribution agreements therefore typically attempt to prohibit resale, with varying degrees of success.

While eBay doesn't defend the sale of counterfeits, it is opposed to legal limitations on e-commerce that limit the resale of authentic products, like the fragrances in question.  According to Bloomberg, however, eBay has now announced its intent to comply with the order "as technically and humanly as possible."  Whatever that might mean.

In the U.S., the first sale doctrine (usually referred to elsewhere as "exhaustion of rights") limits the ability of an intellectual property rights owner to control a product once it has been released into the stream of commerce.  In other words, if you want to resell that copyrighted book you've finished reading or that tacky trademarked tchotchke, go right ahead.  However, copyright and trademark holders have had some success in limiting the first sale doctrine via contract (and statutory modifications), which is why you usually don't buy software -- you just license it, with a prohibition on passing it on.  Other jurisdictions enforce somewhat greater restrictions on resale -- so French LVMH and American eBay are involved in a cultural clash as well as a legal one. 

While LVMH has once again experienced the sweet smell of legal success, its dispute with eBay is far from over -- with respect to either counterfeits or unauthorized sales of authentic products.  Stay tuned.

And in the meantime, read more about the issue in Cosmetic News (thanks to Sophie Douez for the quotes!) or listen to my brief chat with June Grasso on Bloomberg Radio at 4:20 this afternoon.

July 10, 2008

String Theory

Fans of the British TV series Doctor Who are still debating the details of last Saturday's season finale -- as well as the BBC's controversial enforcement of its intellectual property rights in the show.  And they're not just talking about downloads and DVDs.

It seems that grannies in the U.K. have given up knitting tea cosies and are instead turning out Doctor Who scarves and plush replicas of the various aliens whom the Doctor encounters in his travels.  Since both crafters and science fiction fans are communal types, it's not surprising that patterns for these projects have appeared online, further encouraging the proliferation of DIY knockoffs.  While the BBC is state run, it still has a keen eye on potential profits from merchandising -- and thus cease & desist letters have followed. 

The fiber arts brigade has, of course, questioned both the BBC's judgment -- why anger the fan base? -- and its legal statements.  Is it really illegal to knit your own Adipose baby or peaceful Ood?  Or to take up needles and recreate other TV characters or their signature wardrobe pieces?

From a copyright perspective, it's a knotty problem.  Characters can be protected by copyright, and thus a knitted version would constitute an infringement.  And if the knitted version is an infringement, then distributing a pattern online might very well constitute contributory infringement -- after all, the instructions enable others to knit their own unauthorized copies.  On the other hand, versions of the scarf worn by Tom Baker, the fourth actor to play the Doctor (1974-1981), may not be subject to copyright, since U.K. law protecting fashion designs at the time was far more limited than it is now.  Today, however, original items in a character's wardrobe would be more likely to enjoy copyright protection -- though a striped scarf might still be too generic to qualify.  (In the U.S., characters' wardrobe items would still be unprotected in almost all cases -- although animated characters would have a distinct copyright advantage over their live counterparts.)

As for trademark, relatively few characters are actually registered or used to indicate the source of tie-in products, but the name of a TV series certainly would be.  Thus any use of the name in a trademark manner -- "Buy your handmade Doctor Who toys/scarves here!" -- would constitute an infringement. 

So unless you're prepared to use those knitting needles as deadly weapons, it may be best to hide behind the sofa when that C&D arrives. 

Adipose babies


Thanks to my esteemed colleague, a lifelong Doctor Who fan, for suggesting insisting upon this post!  (It was this or knit him a scarf....)

July 08, 2008

Duplicitous Discount


The © MURAKAMI exhibt at the Brooklyn Museum opened in April with real Louis Vuitton handbags masquerading as fakes -- and will close Sunday amid a flurry of counterfeit coupons pretending to be genuine. 

Filip Noterdaeme, the artist/activist and founder of the Homeless Museum of Art project, objects to the commercialization of culture in general and the presence of a Vuitton boutique at the Brooklyn Museum in particular.  The tiny boutique at the heart of the exhibit, which carries the products of the Takashi Murakami/Marc Jacobs collaboration for Vuitton, is itself a provocative commentary on Murakami's "super flat" integration of art and commerce -- and it apparently succeeded in provoking Noterdaeme, who has distributed hundreds of fake "discount" flyers.  While the ad only suggests asking for a discount, the intent is "to confer to museum visitors the absurdity of a bluntly commercial enterprise infiltrating an art museum."  And maybe to generate a bit of conflict at the cash register.

Interestingly, Noterdaeme avoided reproducing the LV logo or signature toile, perhaps in an effort to avoid trademark liability.  But would the First Amendment shield him against a claim of tortious interference with business activity?  Possibly -- but when taunting Vuitton, Noterdaeme would be well advised to send up a Hail Mary. 

Via Gawker

July 04, 2008

Comic Book Couture

Celebrate Independence Day in style with a salute from Christian Dior Haute Couture by John Galliano (Spring 2001), currently on view in the "Patriotic Body" section of the Met's Superheroes exhibit.

And then take a closer look at the spangled "CD" logo, conveniently obscured by a turned-up collar in the Met's official pictures but captured on Flickr by fabulous photographer ggnyc.  Seem familiar somehow?

Perhaps we should ask the folks at DC Comics, which used Milton Glaser's "DC" inside a circle and stars (bottom inset) as its logo from 1977-2005.  It's enough to curl Wonder Woman's hair -- assuming that the all-American Coke cans don't do the trick. 

Happy 4th of July from Counterfeit Chic!

July 01, 2008

Pope Pirate I, Part II

It's official:  The devil wears Prada, but the Pope wears Prada knockoffs. 

It seems that His Holiness wishes to exorcise the persistent rumor that his red shoes are by Prada.  L'Osservatore Romano, the Vatican newspaper, last week categorically denied that Benedict XVI indulges in designer footwear, stating instead that the pontiff patronizes a cobbler from Novara, Italy.  Who may or may not be inspired by a light in the east -- about 50 km east, in Milan, to be exact.

But who designed the Easter bonnet?

Via His Superfabulousness, the Manolo.