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April 24, 2009

DVF Does the Right Thing

For hardcore fashion pirates, copying is just a business method -- where the law lets them get away with it.  But what happens when an otherwise creative designer finds that she's inadvertently plagiarized a little-known label?

CFDA President and designer extraordinaire Diane von Furstenberg was "horrified" to learn this morning that her "Zaria" jacket for spring 2009 (right) bears a strong resemblance to a spring 2008 look from the indie Canadian label Mercy (left) -- and she lost no time in taking action.

 Mercy jacket (left) and DVF Zaria jacket (right)

Diane, who has suffered at the hands of career copyists herself and has been a determined proponent of U.S. legislation to extend intellectual property protection to fashion designs, immediately sought to get all of the facts and to reach out to the Mercy duo of Jennifer Halchuk and Richard Lyle.  Although there is no copyright violation in this case -- the DVF fabric pattern and the Mercy floral, both of which are subject to protection, are quite different -- Diane nevertheless intends to voluntarily compensate the Canadian designers for the unauthorized use of their work.  No doubt she'll also be having a conversation with the 15+ members of her design team about the difference between inspiration and imitation.

"I am devastated," Diane told Counterfeit Chic, "but this can be a lesson for everyone." 

Score one for corporate ethics -- not an oxymoron after all.

 

Many thanks to fabulous fashion illustrator Danielle Meder, who was the first to send a tip!

November 25, 2008

Holiday Shoplifting

In difficult economic times, some shoppers eschew luxury labels, while others turn to fakes.  Still others avoid conspicuous consumption altogether, whether the logos are real or just look that way.  But a few determined materialists may choose to indulge their every desire -- with the help of a five-finger discount. 

Shoplifters at Staten Island Mall, however, may find themselves featured in an unexpected photo layout.  15-second ads on mall's electronic bulletin boards display mug shots of past shoplifters, and more faces may be added in the case of future arrests and convictions. 

 

A clever use of shame to deter crime -- unless delinquent attention-seekers find the idea of being part of the rogues' gallery too appealing to resist.  In which case the mall will have to find other ways of humiliating thieves. 

Counterfeit Chic suggests forcing offenders to wear elf costumes and assist Santa -- though admittedly such a sanction may be both cruel and unusual. 

November 20, 2008

Profile in Courage

When three subway muggers snatched Marie Conde's fake Gucci bag, she not only gave chase -- she grabbed one of them by the arm and held on long enough for the cops to arrive.  Of course, it wasn't the bag or even the money that Marie was concerned about, but her green card and other documents.

Still, if she's going to take such a courageous and dramatic risk, it ought to involve better than a counterfeit.  Or at least PR maven Kelly Cutrone thought so, and then made sure that Marie ended up with not one but two Longchamp bags, two sets of Alex and Ani "Spiritual Armor" bangles, and other luxury rewards

 

Gucci, are you listening?

October 31, 2008

Sarah's Other Shopping Spree

Your scary Halloween costume checklist:

  • Beehive hairdo
  • Rimless glasses
  • Lipstick (wouldn't want to be mistaken for a ... oh, never mind)
  • Designer business suit (red, black, white or combination thereof)
  • Pumps (see first two color choices above)
  • Counterfeit accessory (optional)

Eric Wilson at the New York Times started the Sarah Palin knockoff watch with his observation last week that she had arrived at the Alaska governor's mansion the first time wearing "what appeared to be a knockoff Burberry scarf."  Now her youngest daughter has been photographed carrying (Mommy's?) Louis Vuitton bag, also alleged to be fake. 


Even if the luxury bag turns out to be genuine -- perhaps part of that $150K shopping spree -- it doesn't exactly scream all-American hockey mom. 

And if the scarf and bag are indeed counterfeit, Sarah may have to face a few questions about the source of the illegal merchandise and her take on fakes.  Not to mention their association with child labor, organized crime, and, yes, in some cases even funding for terrorism.  (Perhaps you've received some of the spam suggesting that Obama is a Muslim, associates with terrorists, or both.  Imagine what those guys would be writing if one of his daughters instead of one of Sarah's had been spotted with a counterfeit handbag.  Talk about scary.)

Now, back to that brain-eating zombie costume...

Thanks to my fabulous Fordham law student Andrew Wolinsky for the tip!

October 21, 2008

The Gang Formerly Named for Genghis

The Mongols have a constitution and bylaws, wear matching insignia, and earn the equivalent of merit badges -- albeit for things like committing violent crimes or engaging in certain sex acts.  They've even registered their name as a service mark.  But the members of the notorious motorcycle gang are no Boy Scouts, and federal law enforcement officials have taken a novel approach to intellectual property law in an attempt to shut down the organization. 

In addition to a massive early morning raid that resulted in dozens of arrests, the L.A. Times reports on this more subtle approach:

U.S. Attorney Thomas P. O'Brien said if his plan is successful, the government would take over ownership of the trademark, and anyone caught wearing a Mongols patch could have it seized by law enforcement on the spot.

"Not only are we going after the Mongols' motorcycles, we're going after their very identity," O'Brien said in a telephone interview early this morning.

In an article from the Associated Press, O'Brien added, "It would allow law enforcement to seize the leather jackets right off their back."

Of course, the prosecutor could simply have attempted to strike at the group's legitimacy by canceling the mark, perhaps arguing that it consists of "immoral, deceptive, or scandalous matter" or is "primarily geographically misdescriptive," since the gang operates out of southern California, not Asia.  Cancellation, however, would allow the Mongols -- and anyone else who chose to do so -- to continue using the mark, though not exclusively.  Federal ownership would instead ensure that nobody outside the government could legally reproduce or use the mark in connection with the group's activities.

And after all, men who are allegedly willing to sell drugs, commit murder, and copulate with corpses will surely hesitate to engage in intellectual property infringement.   

 Mongols' logo

Thanks to fabulous Fordham Law alum Suzana Carlos for the tip!

September 09, 2008

Watch Out!

Conned by a clever counterfeiter?  Don't feel bad -- so was the shop of a 5th-generation jeweler whose family has been in the business for 98 years. 

 

H.L. Gross & Brothers in Garden City, New York, paid USD $12,500 for a "Patek Philippe" supposedly worth $20,000 -- only to open it up and realize that while the watch had appeared genuine from the outside, the inside mechanism was that of an obvious Japanese fake.  Police apprehended the seller, Ian Kosloff, who was wanted for similar scams in Virginia and Florida. 

The counterfeiter's attitude when caught?  Caveat emptor.

August 04, 2008

Altered Advertising: J.Crew's Fun with Photoshop

When the clever website Photoshop Disasters caught J.Crew posting both "before" (left) and "after" pictures in its online store, the editor wasn't at all judgmental about the photo alterations -- just amused by the accidental juxtaposition of the images.  After all, everbody knows that fashion images are faked, from the clothespins down the spine of a designer dress in Funny Face to the wonders of retouching, airbrushing, and computer manipulation.  So what's the problem with thinner thighs via virtual custom tailoring?

 

Perhaps nothing -- unless such alterations materially misrepresent the product and could be considered false advertising.  One of the most famous such cases dates back to before your favorite law prof was born and involved food, not fashion.  Campbell's Chicken and Stars soup, to be exact.  According to an article in Advertising Age (unfortunately not linkable), the little pasta stars refused to show their faces on camera, sinking to the bottom of the bowl instead.  The ad agency solved the problem by adding clear marbles and bits of glass to the bottom of the bowl, and voila!  A perfect picture.  Until a competitor complained to the Federal Trade Commission and a group of law students calling themselves Students Opposed to Unfair Practices (yes, SOUP) got steamed.  Although the case was ultimately settled, it introduced the concept of corrective advertising and helped lead to the industry's establishment of a National Advertising Review Board.

So, do altered images like the one on the right risk the wrath of the FTC under 15 USC 45(a)(1), which bars deceptive pratices affecting commerce?  Probably not, unless the government decides that consumers are harmed.  Since clothing fits everyone differently, and trousers that are baggy on a skeletal model might be, well, close-fitting on the rest of us, J.Crew could even argue that its Photoshopping presents a more realistic picture of the trousers. 

Still, J.Crew's web troubles -- including order mixups that have apparently prompted a coupon offer as well as an apology -- offer a revealing look at the reality behind the ad images.  As well as confirmation that even models' thighs aren't that skinny.

 J.Crew bikini before (left) and after Photoshop

June 24, 2008

Penney Dropped

J.C. Penney's award-winning "Speed Dressing" ad, in which 2 teens practice getting their clothes back on quickly in anticipation of hooking up in the basement while Mom is upstairs, is apparently a fake.  And the straightlaced, Texas-based department store is not pleased. 

In today's Wall Street Journal, Cheryl Lu-Lien Tan quotes the chain's chief marketing officer calling the ad "obviously inappropriate" and adding, "We're very disappointed that our logo and brand position were used in that way."  J.C. Penney lit up the telephone lines to its ad agency, Saatchi & Saatchi, which in turn has blamed Epoch Films, the independent production company that submitted the ad in competition. 

If lawsuits ensue, the likely response will be that the commercial, which concludes with the legend "Today's the day to get away with it," is a parody of Penney's "Today's the day to..." campaign.  However, the widespread belief that the ad was real and its entry in a contest as such won't help the argument. 

 

Of course, it's also possible that the ad is genuine and that Penneys is trying to both pacify its conservative customer base and appear edgy to a younger generation.  In which case some twisted marketing mind really deserves an award. 

Via Gawker

March 11, 2008

Scent of a Woman

On the same day that the Catholic Church unveiled 7 new deadly sins, New York Governor Eliot Spitzer was revealed as having a bit of trouble with one of the old ones.  The professional moralizer, now known as "Client 9" of a high-end prostitution ring, may not remain in elected office for long.  But surely such a clever individual will land on his feet.  The counterfeiting industry, for one, could use his alleged money-laundering skills -- unless cross-border trafficking is more his style.

On a personal note, I only encountered Spitzer in the flesh, so to speak, on one occasion:  this past Valentine's Day, when I was in Washington for a congressional hearing on intellectual property and design and he was in Washington for...well, I guess now we all know.  A few of the other folks entering the Rayburn Building went over to shake hands with him, but I didn't join the queue -- good thing, too, given where those hands had just been.  No wonder the governor was looking so pleased with himself at the time. 

Photoshop image via Gothamist

February 28, 2008

The Audacity of Hope

Mark Halperin in his Time magazine blog noted an interesting and presumably unauthorized reproduction of a recent cover at an Obama rally in Texas.  Asks Halperin, "Who made money off of the sale of that shirt?"

Unauthorized Time Obama tee 

The Clinton campaign, of course, denies having circulated the "dressed" photo. 

February 27, 2008

The Counterfeit Triangle?

Attention New York tourists:  Canal Street is closed.  Or a least part of it is.  For the moment. 

After the police conducted a $1m raid Tuesday morning, Mayor Mike Bloomberg posed with a "CLOSED" sign among the trays of fake watches and piles of counterfeit handbags.  The bust involved 32 separate storefronts, all owned by the same estate and located in a triangular city block newly dubbed the "Counterfeit Triangle," bounded by Canal, Walker, and Centre Streets.  The counterfeit trade, according to the press release, is "standing in the way of the revitalization of Chinatown," and the mayor intends to make renting to counterfeit retailers "a losing business proposition." 

If the Counterfeit Triangle is anything like the surrounding blocks, however, its mystery is not one of unexplained disappearance but incorrigible reappearance.  Seize the merchandise, arrest the sellers, put up warning signs, raze the buildings, sow the earth with salt -- and still a runner will stand on the corner whispering a litany of familiar brand names. 

But hey, the mayor isn't running for President, so he's got to set up a podium somewhere.  Call it the politics of hope. 

Via the New York Times City Room blog. 

February 12, 2008

Gossip Girl

Why bother with crossword puzzles when you can test your cleverness with blind news items?  Fashion blog Jezebel's model mole, "Tatiana," reported the following from New York Fashion Week:

But Friday afternoon, well, rocked. I was working for a designer -- or, let's face it, design team-- that, like Wednesday's, steals shamelessly from vintage fashions, then reproduces them at minimal cost in the massive industrial sweatshops of China and Indonesia, only to charge absurd markups back home, and is owned by a parent conglomerate that also holds a sheaf of other global brands. Its founder is noted for having once donated to Rick Santorum. Yet I can muster nary an ounce of outrage; everyone was just too damn agreeable.

Apparently the fashion world is so fickle that mere pleasantries can dissipate the sternest ethical objections.  The real question, however, is what label the pseudonymous catwalker might have been referencing. 

A key clue here is Rick Santorum.  The president of Urban Outfitters, Richard Hayne, stirred controversy a few years ago when the chain advertised T-shirts with the slogan, "Voting is for Old People."  The media subsequently noted that Hayne had donated a substantial sum to the conservative Pennsylvania senator.  Who has since lost.  Badly.  (And somehow that T-shirt hasn't reappeared this year....)

Urban Outfitters also owns Free People and Anthropologie, the latter of of which previewed a new line called Leifsdottir during Fashion Week.  And yes, Anthropolgie is known for being, ahem, somewhat less than original, though vintage items -- as opposed to new designs still in production by their creators -- are free for the (rag)picking. 

So, whether Leif's fair young daughter has a dark side or some other brand has been cutting a few design and production corners, someone was watching.  And whispering.

Is it she?  Polaroids at Leifsdottir. 

December 06, 2007

Fine Dining at Smugglers' Cove

Some dining options can be as tough as shoe leather.  And some actually are shoe leather -- counterfeit Nike shoe leather to be exact -- labeled as "refrigerated noodles" for purposes of avoiding customs inspection.

The U.S. attorney's office in Manhattan has announced the breakup of a major smuggling ring, with 10 people arrested and $200 million in fake fashion items seized, including counterfeit Coach wallets, Burberry handbags and Polo Ralph Lauren and Baby Phat clothing, as well as the creatively labeled Nike Air Jordans.  The operation brought goods into New York from China with the assistance of $500,000 in bribes -- to an undercover customs agent.  Now that's using your noodle. 

Shipping container with counterfeits inside (WWD)

Want to hear more about what's on the menu in Chinatown?  Join WWD reporter Liza Casabona as she talks to strangers and walks down dark alleys. 

November 24, 2007

The Manolo's Guide to Holiday (Photo)Shopping

The Manolo and his elegantly shod readership have most graciously sent Counterfeit Chic a real turkey -- and not the tasty Thanksgiving variety. 

Yes, it's Steve Madden.  Again.  It seems that Mr. Madden, not content with pilfering Christian Louboutin's elegant shoe designs or signature red soles, may have turned to stealing photos of the master's shoes as well.  Compare Saks' picture of the Louboutin "Miss Fred Tacco" (left) with the Madden "Becks":

Which convinced you -- the identical patent leather reflections, the perfect camera angle, or perhaps the suspiciously similar shoelaces?  Although the background and red soles appear to have been erased, you are presumably not fooled by the many-colored wonders of Photoshop -- and nor is the law.

Steve Madden Becks in blue, red, and cognac

True, M. Louboutin's talented hands are probably tied, at least with respect to intellectual property law.  U.S. law does not protect his designs, and while he has applied for a trademark on his red soles, Steve Madden has finally learned not to copy that presumably protectable element. 

U.S. copyright law, however, has a thing or two to say about commercial misuse of a photo.  Assuming that the Becks shot is merely an unauthorized, altered version of Miss Fred Tacco's best angle, the owner of the copyright in the photo has a cause of action against Steve Madden.  That copyright holder could be the original photographer, or Saks Fifth Avenue, or even Christian Louboutin himself in the unlikely event that he supplied the photo. 

The fact that an image has been substantially changed does not eliminate the the cause of action in copyright; it merely turns the offending imitation from an unauthorized copy into an unauthorized derivative work.  And while copyright law includes substantial provisions for fair use, no lawyer who can spell "copyright" (that's "right," not "write" or "rite") would argue that taking one online catalog photo for use in another catalog fits the criteria. 

But what if the photographer were a freelancer who cleverly kept the copyright in the photo and licensed its use to both Saks and Steve Madden?  In that unusual scenario, there would be no cause of action in copyright.  It could still be considered fraudulent, however, to picture one item for sale and then substitute another.  As the Manolo muses, "this leaves the Manolo wondering exactly what the Becks looks like."  Not, of course, that our fashionable friend has any intention of finding out.

Bottom line:  Christian Louboutin cannot stop Steve Madden from copying his coveted designs.  Yet.  But the mere click of a shutter created an image that has infinitely more legal protection that the pictured shoe itself, and the copyright holder may not appreciate its reappearance elsewhere.  Moreover, it's not nice to fool potential customers with false representations of the goods.  So, legally speaking, Steve Madden may have stepped in it once again -- and his lawyers had better put down their Thanksgiving forks and pick up their pens. 

Many thanks to His Superfabulousness for sending the link, and to eloquent reader Victor Ramirez for asking Counterfeit Chic to comment on such "tomfoolery."

Continue reading "The Manolo's Guide to Holiday (Photo)Shopping" »

October 30, 2007

Matter v. Antimatter

What happens when a real designer meets a fake handbag? 

Kate Spade presumably spent years stepping over and around (and perhaps even on) counterfeits of her work on the sidewalk outside her Soho boutique.  When she saw a phony fan carrying a replica of a new style, however, she crossed the street to investigate further.  The guilty party -- who recognized Kate immediately -- claimed that her husband had purchased the bag.  But Kate is still feeling the hate, according to New York magazine.  "Anytime you ask someone, they say that," she muttered. "'I don't know, it was a gift.'"

Real Kate Spade label

Fake Kate Spade label

It may take a designer to spot a fake a 20 paces, but Kat at IHateCounterfeitBags.info has made it her mission to keep the rest of us from being fooled.  Compare a real Kate Spade label (top, note the spacing between letters) with a counterfeit (bottom), and then head over to Kat's website for more on the finer points of fakery.

And should you find yourself having made a faux pas, watch out -- Kate's approach is a bit more stern than Jack's

October 26, 2007

Unsportsmanlike conduct

Lou Piniella kicking itThe World Series is upon us, and in a week or so the winner will be reward not just with a trophy, but millions of dollars in proceeds from the sale of championship merchandise.

However, that's only half the story.  Every year teams in contention for the playoffs and the World Series prepare thousands of shirts, hats and other items in anticipation of victories that never occur.   

Major League Baseball used to require the losers to destroy these erroneous goods.  This year, though, the League has announced that it will expand its charitable giving alliance with World Vision by clothing the needy in unsalable merch branded with the names of losing teams. 

Whether it's cruel or kind to deny Cubs fans the chance to buy 2007 National League championship t-shirts is a question we'll leave to sports radio.   However, there's also an important legal issue raised by this charitable endeavor, and it flows from the word "expand."

You see, before Major League Baseball decided to give away its unsalable authentic goods, it had a long-established policy of sending seized counterfeits abroad.

World Vision and the U.S. government have both praised the Major League's largesse, particularly for its efforts in Africa.  But is this something that African governments truly want?  Ghana, Uganda, South Africa, Tanzania and other African countries have been making headlines with their efforts to curb the importation of pirated goods.  Nonetheless, even as these countries are rewriting their laws and boosting their customs budgets, World Vision and other well-intentioned souls have been flooding the continent with counterfeits impounded in the West. 

If companies expect African governments to make headway in the fight to stop the flood of imported fakes, perhaps the time has come to do with counterfeits the same thing that baseball umpires do with unruly managers--

Throw them out

October 07, 2007

OJ Did It! Simpson Caught Wearing Fake Rolex

For O.J. Simpson, law and fashion are a lucky combination. 

When he was accused of killing ex-wife Nicole Brown Simpson and her friend Ron Goldman in 1994, the criminal jury found him not guilty, despite evidence including a bloody size 12 Bruno Magli footprint and a suspicious pair of Aris Light gloves.  Defense lawyer Johnnie Cochran made headlines with the glove found at the scene of the murders, infamously telling the members of the jury, "If it doesn't fit, you must acquit."  They did. 

O.J. didn't fare so well in a civil trial, in which the Goldman family was awarded USD $33.5 million -- which they have yet to collect.  The tide seemed to be turning for the Goldman family recently, when a California judge ordered OJ to turn over a gold Rolex Submariner watch (among other things) in partial settlement of the judgment.  The value of the watch, which O.J. had been spotted wearing in a photo on TMZ.com, was between $12,000 and $22,000.  Or so the Goldmans thought.

It turns out that the watch was a fake, worth about $125. 

The judge has since ordered the watch returned to O.J.  -- but why not sell the fake anyway?  After all, its celebrity associations are sure to draw interested bidders, and the Goldmans' lawyer has already received a $10,000 offer. 

Unfortunately for the Goldmans, the judgment exempts jewelry worth less than $6,075.  Simpson's lawyer successfully argued that allowing the sale of the watch at a higher price would create a precedent under which the Goldmans could attempt to seize any number of trivial items belonging to O.J. on the theory that they could be sold at a significant markup. 

Not to mention the fact that selling a counterfeit -- even one clearly acknowledged as such and sold as a pop culture artifact rather than as a substitute for a real timepiece -- is a crime.  Of course, O.J. can't sell the watch either, but in the U.S. it's perfectly legal to own a fake. 

At least the case has left us with one new legal rule:  If the watch is fake, you cannot take. 

October 04, 2007

Sticking It to 'Em

Sheet of counterfeit Lacoste alligatorsKids love stickers.  Geek kids use them to decorate notebooks, slacker kids use them to personalize skateboards, and jock kids add them to football helmets. 

Some adults love stickers, or their embroidered equivalent, too.  Especially since certain add-ons can turn generic, legally imported merchandise into far more lucrative lucrative counterfeit goods. 

WWD's Ross Tucker and Liza Casabona report that with the crackdown on counterfeit goods at U.S. borders, there is an increasing trend among counterfeiters toward bringing in unlabeled knockoffs and adding the fake labels and logos stateside. 

This practice of finishing goods in the U.S. in order to evade anticounterfeiting enforcement activities isn't new.  Even at the point of sale, it's not uncommon to buy an unlabeled fake and have the seller stick on a fake logo afterwards.  I've regularly mentioned this practice as one reason among many that a law against design piracy makes good sense -- why should the government spend time and money on other anticounterfeiting legislation if enforcement can be so easily evaded?  In the absence of laws against copying designs, however, smart counterfeiters are apparently taking ever greater advantage of their ability to import unlabeled goods, manufacture the small and easily hidden labels locally, and bring the two together when the coast is clear. 

Of course, not all counterfeiters are particularly good at this sleight of hand.  Some get caught with stacks of fake labels or rooms full of embroidery machines.  Others simply can't match the label with the product.  Every now and then online auctions include Burberry plaid handbags with Kate Spade labels, for example, or a mixed tangle of Prada and Chanel charms.  My personal favorite is a dead ringer for a black Fendi "B" bag -- with a triangular metal Prada label stuck right in the middle. 

All of which gives a whole new meaning to "sticker shock." 

August 23, 2007

i believe...

...that Elizabeth Arden's PR department is working overtime to deal with this -- ahem! -- oversight in its ad campaign for the Britney Spears Believe fragrance.

True, nobody is likely to confuse Britney with a charity (of late a charity case, perhaps), and fragrance and socially conscious t-shirts hardly fall into the same category.  The use of a typeface and colors so extremely similar to Mondonation's just doesn't pass the smell test, however.  Stealing is bad; stealing from a social enterprise is worse. 

What does it say about the modern era when you wake up and put on a save-the-world-type t-shirt, only to find yourself a walking billboard for celebrity perfume? 

July 23, 2007

Welcome Morning Call Readers!

Thanks to fashionable reporter Kelly-Anne Suarez for exploring the counterfeit question in the wake of a Pennsylvania flea market bust -- during which the cops may have engaged in a bit of false representation of their own.  According to the article:

Sophia Petryszyn of Hopewell Junction, N.Y., was there last Sunday, when the undercover police made their move. She said she'd just asked a vendor if she could exchange a pair of leather sandals she'd purchased for her husband.

''And a cop turns around and says, 'If you want to get arrested for receiving stolen property,''' Petryszyn said. ''I was so scared, I just turned around. I didn't want them to take my bag away.''

She laughed and adjusted the fake, brown Coach purse slung over her shoulder. She'd bought it for $30 minutes before the raid.

What the police officer didn't tell the counterfeit customer is that in the U.S., unlike in France or Italy, neither buying nor possessing fake merchandise is a crime, even though selling it is.  And while the flea market vendors in question may have participated in the theft of "Coach" and other trademarks via unauthorized copying, the goods themselves were not stolen property in the legal or traditional sense. 

On the other hand, the logic of the cop's statement is clear.  If intellectual property is indeed "property," then it follows that taking it without permission should constitute "stealing."  The fact that the law differentiates between taking the trademark via copying and taking the handbag or other tangible object in which the trademark is embodied demonstrates the unique nature of intellectual property -- and the reason why some scholars still debate the utility of the term.

A nice conundrum for a Monday (and yes, those quotes are from your humble blogger). 

July 06, 2007

Macy's meets MTV

Around the same time that Macy's was exploding Fourth of July fireworks over New York's East River, MTV designer Rich Browd was exploding at Macy's. 

The reason?  According to an email forwarded to Counterfeit Chic, Macy's lifted a T-shirt design for the MTV Store and "plastered it all over handbags in its flagship location," Herald Square, New York. 

The good news for MTV is that while neither typefaces nor short phrases are subject to copyright protection, graphic designs are -- and the substitution of "Macy's" for "MTV" is hardly convincing evidence of original design.  And while as an employee Browd probably doesn't hold the copyright himself, when MTV's lawyers get hold of this photo, the real fireworks should begin.

Many thanks to my creative Fordham law student Kevin Bodenheimer for the tip!

June 27, 2007

Big Bust

Ahem.

Federal officials announced one of the biggest counterfeit busts in years yesterday, charging 29 people with importing approximately USD $700 million worth of illicit luxury goods in over 950 separate shipments.  Unlike street raids, which target low-level retailers and hardly cause a ripple in the flow of counterfeits to consumers, this coordinated action targeted major suppliers who collaborated to circumvent customs inspections.

Three separate complaints detailed the alleged activities of the smashed smuggling rings, including:

  • Providing false descriptions of merchandise to crooked customs brokers, who act as the conduit between U.S. Customs & Border Protection and importers, in order to conceal counterfeits or avoid paying duties on expensive merchandise (e.g. labeling containers of counterfeits as children's toys or shower curtains);
  • Fraudulently obtaining permits to transfer merchandise between ports of entry and bonded facilities to await clearance -- and then delivering merchandise to their own or customers' warehouses instead;
  • Keeping "dummy" containers of innocuous merchandise (like those toys) ready for customs inspection;
  • Stealing the ID numbers of legitimate importers in order to disguise counterfeits;
  • Falsely avoiding inspection by claiming that merchandise was simply passing through the U.S. and was destined for Canada or Mexico;
  • Bribing Immigration and Customs Enforcement agents (who were working undercover) to file false paperwork or to release goods; and, of course,
  • Money laundering.

The entry points for illicit merchandise spanned the nation:  Newark, NJ; Houston, TX; Long Beach, CA; Staten Island, NY; and New York's John F. Kennedy Airport.  The list of luxury brands involved is even more extensive, including Coach, Chanel, Louis Vuitton, Rolex, Balenciaga, Nike, North Face, Gucci, Fendi, True Religion, Seven for All Mankind, Kate Spade, Timberland, and A Bathing Ape in categories ranging from shoes and sunglasses to watches and handbags.  (Any company left out should count its blessings -- and then worry that its brand is no longer "in.")

As apparent from the WWD photo, New York officials wasted no time in processing the first batch of defendants -- or parading them in front of the waiting press.  And no doubt some of the Homeland Security folks responsible for coordinating the investigations enjoyed a hard-earned beer after wrapping up the sting.  It's all up to the prosecutors and the courts now. 

Still, one wonders:  Why are there so many apparently simple ways of avoiding customs enforcement?  Just how porous are U.S. borders, anyway? 

Perp walk in New York

And, of course, will souvenir-seeking New York tourists who would otherwise buy counterfeits by the bag go home empty-handed this Fourth of July? 

Thanks to my sharply dressed and national security-minded Fordham law student, James Creedon, for forwarding the press release.

April 29, 2007

Double trouble for celebrity designers?

Fleet Street is abuzz with anticipation for May 1st launch of the new Kate Moss line at Topshop.  However, not all the news is good.  A number of reports in both the UK and US focus on the derivative nature of her designs, whose chief inspiration seems to be clothes that Moss had previously worn

Kate Moss in 1998 (l) and in a KM

Beyond tabloid jabs such as "DupliKate" and "Copy Kate" established designers have been highly critical of the collection.  In fact, several have seized on the occasion to criticize celebrity labels as unoriginal and deleterious to the future of innovative design.  Here, for example, is the lively response of two-time British Designer of the Year Jeff Banks, who asserts that "to claim the product has actually been designed by the celeb beggars belief."

"Can Kate sharpen a pencil or draw a matchstick man? Banks asked. "I wouldn't put money on it. I'll bet [Kate Moss] just grabbed one of her many Prada bags, rifled through her wardrobe ... and turned up at Topshop's head office in Oxford Street for a quick hour's briefing with the in-house designers and buying staff." 

Malcolm Burkinshaw, a fashion educator & former Benetton designer, likewise observes that

looking at the Kate Moss range, every item is a copy of a piece from her wardrobe or a version of it, which isn't design, it's rip-off. The lowest ends of fashion do this.

Will the celebrity design bubble burst?

April 05, 2007

Tourists Trapped!

A knockoff shopping expedition lasted longer than expected for 12 tourists visiting New York's Chinatown yesterday.  The New York Post reports that when police raided the building, the counterfeit retailers refused to let the would-be customers leave the basement -- for 2 hours.

When cops cataloging fake merchandise finally received a call alerting them to the presence of unwilling guests downstairs, they found not only visitors from Spain, Georgia, and Florida, but also a cache of counterfeit Cartier and Rolex watches.  Apparently the tourists were relieved not to be in legal trouble themselves, but the same can't be said for their hosts, three of whom have been charged with unlawful imprisonment as well as counterfeiting. 

Having witnessed similar (albeit much shorter term) behavior by merchants anticipating a raid, I can imagine the tourists' discomfort at their predicament.  Then again, it could have been worse -- at least they weren't stuck on JetBlue.

March 14, 2007

Nosy Customs Inspectors

Some savvy discount shoppers examine handbags the way that picky produce buyers select ripe melons, using their olfactory expertise.  Real leather or fake pleather?  The nose knows.

Now the MPAA has found a way of sniffing out counterfeit DVDs as they pass through customs, using canine rather than human detectives.  Lucky and Flo, two black Labradors, have been trained to detect the smell of polycarbonates used in the disc manufacturing process.  While the dogs can't distinguish between original and copied movies, a test run in Malaysia showed that they can quickly identify shipments of pirated discs labeled as other merchandise. 

Can more little doggie noses, wrinkled in disgust at the smell of processed plastic purses or counterfeit cologne, be far behind?  Obviously the range of possible faux odors makes this a complicated proposition, but the idea is an intriguing one.

March 12, 2007

Presidential Power

CFDA President Diane von Furstenberg has declared war on counterfeiters and copyists of her signature wrap dresses and other designs, according to WWD:

"I want to say, 'Beware,'" von Furstenberg said, her voice firm, in an exclusive interview.  "There is no money, there is nothing that will stop me from going after you."

The designer's intelligence operatives in this campaign include would-be DVF customers who are tricked into buying fakes (mainly by online sellers) and who first alerted her to the problem.  She has since created an email address for such reports, stop@dvf.com.  In addition, the company allows customers to send in dresses to ascertain whether or not they are genuine, a particular problem with mid-priced merchandise like DVF's.

Although the commander-in-chief did not reveal the cost of the campaign, it's safe to say that her resources exceed that of many other designers.  Still, from DVF's perspective, a rising tide lifts all boats.  "I am doing it as myself and as the CFDA president and representative of my fellow designers."

Of course, going into battle requires a proper uniform -- perhaps the military-inspired DVF Utility (left) or Clive dresses?

March 01, 2007

Gucci Perfume Ad Smells Fishy

When it comes to advertising, don't believe the hype -- especially when the source is a prankster posing as a Gucci model.

A Swiss paper, SonntagsZeitung, was tricked into running the ad below after being contacted by its creator.  The cost of the 2-page spread, approx. U.S. $50,000, was to be billed directly to Gucci. 

The "model" is apparently under investigation for fraud, but the ad poses something of a counterfeit conundrum for Gucci.  Like all luxury goods companies, its image and advertising are carefully planned and controlled -- but then again, this guy isn't exactly hard on the eyes.

HT:  BoingBoing

February 27, 2007

Lagerfeld's Labour's Lost

Courtney Love showed up at Paris Hilton's birthday party in L.A. wearing Chanel couture -- or did she?  The august fashion house says that only one original dress has ever been made, and that runway sample is still hanging in Paris.

While the test of true couture is the workmanship, which is best viewed in peson, the photographs appear to show differences in both the trim and size of the neckline.  Also, the patch pockets on the original are not visible on Love's dress.

Although copies are legal in the U.S., France protects fashion designs under both copyright and design laws.  WWD reports that designer Karl Lagerfeld is furious (a departure from his past statements about copying) and that Chanel officials are considering whether to take any action. 

Chanel couture original and copy on Courney

Chanel original (left) and Courtney's alleged copy.  Photos: Giovanni Giannoni.

A word of advice to Ms. Love:  The copy may be lovely in pictures, but it won't travel well -- especially to Paris.

February 13, 2007

Welcome Christian Science Monitor Readers!

Christian Science Monitor reporter Patrik Jonsson analyzes the fact that local police around the country are stepping up enforcement against counterfeiters -- and quotes your humble blogger.  From Watson's Flea Market in Raleigh, North Carolina, to Canal Street in New York, the new motto is caveat venditor.  Thanks for the article, Patrik!

February 12, 2007

Optical Disillusion

Would you hit a guy wearing glasses?  Well, what if he hit you first?

Last week, Toronto journalist Peter Silverman found himself on unfriendly territory when he attempted to investigate an optical shop alleged to sell counterfeit designer eyeglasses.  The thing about attacking a TV journalist, though, is that the cameras tend to be rolling. 

 

The follow-up report didn't include any information about the counterfeit goods, so who knows -- maybe the guy was framed?  Or perhaps he just needs his glasses adjusted?

January 31, 2007

Purse Party Planners on Trial

Remember when police busted up parties because teenagers were playing their music too loud?  Now it's their moms who have to worry. 

A front-page story in yesterday's Washington Post reports that a father-and-son team are scheduled to go on trial today for supplying counterfeit purses to everyone from suburban hostesses to mall kiosks in the D.C. area.  Following up a tip from a purse partygoer who suspected -- shock! -- that $40 Prada bags and their ilk weren't exactly on the level , federal agents ultimately seized some 30,000 handbags from a Northern Virginia warehouse. 

Perhaps even more interesting were over 100 phony Kate Spade labels stashed in a desk drawer at the warehouse, waiting to be affixed to otherwise legally untouchable "generic" bags -- which may just happen to look exactly like the designer originals.  As the article notes:

Court documents say the Ohris were told by some malls to stop selling counterfeit goods but ignored the warnings. But Suzette Timme, general manager of the Fashion Centre at Pentagon City, where the family operated two kiosks, said mall security never noticed any problem.

"They were just selling generic bags with no labels," Timme said. 

Sounds like this time the authorities found the smoking glue gun.

Many thanks to both my former Georgetown law student Jacob Howley and my father for sending the story (told you I was a native Washingtonian!).

January 25, 2007

Broad Daylight Sneakerjacking?

Cool urban streetwear is hot -- so much so that a recent counterfeit bust in New York netted more fake streetwear items than luxury items. 

The catch in creating a brand based on attitude rather than luxe, however, is that anything less than real is likely to lose respect -- fast.  Check out Complex.com's must-read post on the Puma sneakers (below right) versus the more recent BAPEs.  Once you discount the color schemes and the different logos, the designs are suspiciously similar....

Many thanks to Bucky for his sharp eye and sharper prose!

December 25, 2006

Faux Flickering Flames

One of New York's most cherished modern Christmas traditions is the WPIX-TV Yule Log, a 6 1/2-minute film of a roaring fire in a handsome brass grate that is broadcast for hours on end, accompanied by a holiday soundtrack.  The faux flames, which burned from 1966 to 1989 and then returned to the screen in 2001, are the perfect holiday touch for apartment-dwellers and others more accustomed to gathering around the television than the hearth. 

Naturally, there's a knockoff -- the high definition version on INHD.

In the spirit of Christmas copying, Counterfeit Chic offers the "Canal Street Yule Log," a seized property "burn" sent courtesy of a fabulous reader.   It may not flicker, but you get the picture.  Holiday screensaver, anyone?

And like the real fake flame, you can pan out every so often to get the big picture:

Now, who's got the marshmallows?

December 23, 2006

Haute Dog

Remember the old joke about the two immigrants who get off the boat in America, walk down the street, and see a group of people buying lunch from a cart that advertises, "Hot Dogs, 10 cents"?  One says to the other, "Do they eat dogs here?"  The other says, "I guess so -- and since we're American now, we should try it."  So they get in line and buy their hot dogs, at which point the first guy looks down at his lunch, looks at the other guy, and says, "Hey ... what part of the dog did you get?"

Happily for our bold gastronomes, sometimes a dog isn't really a dog. 

A version of the same debate, however, is going on this morning -- not with respect to food, but with respect to clothing. 

Sean CombsMacy's has removed from its web site and its stores 2 styles of Sean Jean hooded jacket after the Humane Society found that they were advertised as being trimmed with faux fur -- which was actually real.  Still more shocking are the headlines announcing that the jackets were trimmed with "dog fur," although the actual animal involved is the wild "raccoon dog," which is native to Asia. 

According to the Humane Society, tests on coats purchased at stores ranging from J.C. Penney to Saks Fifth Avenue, and on brands from Baby Phat to Calvin Klein and every price point in between, reveal that 9 out of 10 coats labeled "raccoon" or "coyote" are actually made from raccoon dog -- a form of mislabeling that violates federal law.  Moreover, although the raccoon dog is not a domestic animal, and more strongly resembles North American raccoons than dogs, the Humane Society will petition Congress to ban the use of its fur because of its genetic relationship to dogs kept as pets. 

Sean Jean has, of course, stopped all use of the fur.

Will consumers who have bought the "faux fur-trimmed" jackets line up to return them?  Interesting question.  Some may be anti-fur in general -- but many diehard animal rights folks won't even wear remotely realistic faux fur, lest their stylish example provoke demand for the real thing.  Others may read as far as the headlines about "dog fur," take one look at a cherished pet, and foreswear Macy's forever.  On the other hand, some may simply shrug -- after all, if you bought a cubic zirconia ring and later learned it was actually a diamond, would you mind?  The media elision between the wild "raccoon dog" and the family dog, moreover, is more than a bit sensationalistic.  Would a headline reading, "Macy's pulls Nyctereutes procyonoides fur jackets," have stopped traffic?  Hardly Cruella de Vil material.

While the politics of fur are debatable, misleading labeling is simply wrong.  Then again, so are misleading headlines. 

For more on the great fur debate, click here or read Julia Emberley's history of the subject.

December 12, 2006

Freedom from Expression

An Idaho physician was recently sentenced to six months in prison for injecting patients with counterfeit Botox.  One presumes that his victims, upon hearing the news, remained impassive. 

December 11, 2006

Don't Copy the Cops

Counterfeiters target particular brands on the basis of consumer demand.  The greater the brand awareness and the popularity of certain styles, the more likely they are to be copied.  Of course, the reverse is true as well.  As one individual told me, he knew a certain line was "over" when purse party hostesses asked him not to bother bringing along those particular fakes.

When it comes to imitating official logos, however, I've frequently wondered whether it's just business, or whether some counterfeiters take wry pleasure in taunting the powers that be.  After all, it takes a particularly brazen retailer to sell fake NYPD baseball caps and T-shirts right under the nose of the beat cop.  Talk about waving a red flag in front of a "bull."

In New York, city officials decided last year to fight the flood of fakes with hologram hangtags on authentic goods.  A year later, the New York Post reports that sales of the real deal are up 10%, with police and fire department merchandise remaining the most popular. 

Cause and effect?  Perhaps.  But it seems that not everyone got the memo.  A law-abiding lawyer recently told me that he attempted to purchase an authentic item, only to be told by a helpful city employee that it was unavailable -- but that plenty of copies were for sale just around the corner. 

November 27, 2006

The Making of a Fashion Editor

New Yorker 30 March 1998

November 19, 2006

Like Cabbage for Sauerkraut

For those of you who read last week's Knockoff News and wondered what a million pairs of shoes look like, check out my closet this slideshow, courtesy of my student Louis Abrams. 

Below:  One very satisfied-looking German customs official (in sensible shoes, of course) presides over the shredding of the counterfeits. 

German customs officer Petra Lotzin

November 13, 2006

Fixing Fakes

What happens to counterfeit merchandise after it has been stopped at customs?  Some is destroyed, some is redistributed (a controversial practice), and some is altered and made legitimate by Barry Forman.

The middle column of today's Wall Street Journal reports that "Mr. Fix-It," a rag trade veteran, has established a business that corrects errors made in overseas garment factories but not discovered until the merchandise reaches the U.S.  From sleeve lengths to weak seams, mistakes that would otherwise result in rejection of the goods can be corrected by Santa Fe Finishing.

Among the problems that call for Forman's expertise are counterfeit goods that have been confiscated by customs.  While some are presumably beyond repair, others can be salvaged with minor alterations that remove the offending trademarks.  As the WSJ reports:

In late August, for instance, 17,000 denim pants made in a Chinese factory were confiscated at the port of Long Beach, after U.S. customs officials determined that the zippers on the garments were counterfeits of a Japanese fastening brand called YKK.

To get out of the jam, a representative for the brand called on Mr. Forman.  Fifteen employees headed to the warehouse and set up a makeshift factory, complete with lamps, tables, and tools.  They spent the next five days grinding off the fake YKK marks with handheld drills.  Because the pants now had generic zippers -- rather than counterfeit YKK's -- U.S. customs officials approved the change and let the jeans enter the country, just one week late.

If that's all it takes to fix a fake, then let 'er zip!

Blouse zipper with counterfeit YKK erased

October 24, 2006

Steal This Post

Abbie and Jack ages 8 and 5On the top row of one of my bookshelves, next to various academic volumes on intellectual property, rests a book by the late political activist Abbie Hoffman, Steal This Book.  I'm not by any means either a socialist or a thief, depending on your perspective, but society needs radical voices to remind us of our sometimes too-comfortable assumptions.  And besides, the title makes me smile.

Next to Steal This Book now stands another book, Run, Run, Run, this one written about Abbie by his brother, Jack Hoffman, and inscribed to me personally.  How did I happen to meet Jack?  The story starts with fake handbags.

Earlier this year Jack Hoffman pled guilty in federal court to one count of trafficking in counterfeit goods.  He had offered the logoed designer handbags in question for sale at a flea market near his Massachusetts home, and he had also stored the back stock at his house.  Thus far, standard issue trademark infringement case.   

The Boston Globe, however, reported that Jack thought he was complying with the law because he tucked a card inside each handbag making it clear that the bag was a designer replica, not the real thing.  After all, the standard for infringement is "likelihood of consumer confusion," so it would stand to reason that if the consumer isn't confused, there's no violation, right? 

Wrong.  I regularly receive questions about this common legal misperception; in fact, I've heard a distinguished IP lawyer make the same error -- and argue about it when I attempted to correct him.  As I'm sure many Counterfeit Chic readers know by now, however, trademark law does not distinguish between point-of-sale confusion and post-sale confusion.  Thus if a consumer knowingly buys a fake but others who see it later might mistake it for the real thing, there's a violation.

Still, Jack seemed to have given a great deal of thought to the treacherous waters of trademark from the perspective of fairness and justice, so when he got in touch I was immediately intrigued.  Much later, when I asked him whether the newspaper article was correct, he told me that not only was there a card disavowing authenticity tucked inside each handbag, but each purchaser also received a copy of the card with her receipt.  Unlike some retailers on eBay or other unscrupulous con artists, Jack never intended to trick his customers or to be on the wrong side of the law.  As he told me, "I've never even shoplifted!"

Now, it's also true that counterfeiting of all sorts of products is a big business that can harm both consumers and companies to the tune of many millions of dollars, a point that I've noted in other fora.  As the problem is increasing, so is public awareness -- thanks in part to the efforts of law enforcement.  Several years ago, however, when Jack was selling "replica" handbags at a flea market, the issue had not yet received significant public attention.  In other words, Jack strikes me as essentially an honest individual who made a common mistake as to trademark law and got caught. 

And my guess is that being Abbie Hoffman's brother didn't help matters much for Jack, but that's just speculation.

Jack's sentencing is scheduled for tomorrow in Boston before Judge Reginald Lindsay.  And while many of you know that I have great sympathy for designers who are harmed by copying, I hope that in this case it's only the road to probation that is paved with good (or at least would-be legal) intentions.  (I can't be there, but I'll let you know how it goes.)

And for the rest of you, let me repeat:  Unless you spray-paint the word "FAKE" permanently across both sides of a counterfeit handbag, or similarly eliminate any possibility of consumer confusion at any point in the life of the trademarked object, selling the fake is a violation of the law.  Please proceed accordingly. 

SENTENCING UPDATE:  3 years of probation, the first 5 months of which will be in home detention with electronic monitoring.  Not anybody's favorite style ankle bracelet, but there you have it.

September 27, 2006

Bitten

Do indie designers -- fashion and otherwise -- mind being copied by large commercial enterprises?  Especially without attribution?  Rather than hang around debating the question, check out the forthright and righteous site You Thought We Wouldn't Notice... for direct responses to "biters" (and great pictures). 

September 23, 2006

L.A. Story

In a series of three short clips on YouTube, mnew00 records a large counterfeit bust in the clothing district in Los Angeles.  "Counterfeit Bust 1" show individuals watching the police confiscate counterfeit goods; "Counterfeit Bust 2" includes confused passersby, to whom the videographer explains that the goods are fake; and "Counterfeit Bust 3" shows the bagged goods in the aftermath of the bust.  The number of TV cameras present seems large even for L.A., a city in which events and people only exist if they're recorded on film, so my guess would be that the press was invited along on this raid.

Looks like Hollywood stars feigning a desire to hide from the public will have to wear real designer sunglasses this weekend.

June 27, 2006

Counterfeit Cops Acquitted

On Monday a Manhattan jury acquitted two of the five Manhattan police officers accused of accepting fake sports jerseys, handbags, and other items in exchange for giving a counterfeit merchant information and favors.  A defense lawyer told the court that the peddler, Jamil Faied, was a longtime police informant.

One of the other officers, Jashua Penalo, pleaded guilty and was sentenced to probation, while the cases against George Santiago and Jaime Albertelli are pending.

For Detective Lewis and his co-defendant, Detective Brian Bartlett, however, the case had a happy ending.  Detective Bartlett will try to get his former position back, and Detective Lewis is taking his family to Disney World -- where presumably no knockoffs are allowed. 

June 06, 2006

Et Tu, Your Honor?

Counterfeit Chic recently attended a gathering that included a distinguished member of the judiciary.  When a drink was accidentally splashed on her quilted "Chanel" handbag, the elegantly attired judge graciously pardoned the offender.  "Don't worry about it," she said.  "It's not real -- it's just some piece of plastic."

May 26, 2006

A Girl's Best Friend

Diamonds may be a girl's best friend -- but when the girl is also a jewelry designer, copyright law runs  a close second.

A recent raid on several companies in New York's Diamond District resulted in the seizure of over 100 items alleged to be "substantially similar" to designs by Judith Ripka.

Lucky for Judith that she doesn't design clothes.  Why?  Because while the Copyright Office considers clothing to useful and thus excluded from copyright protection, jewelry is more like a sculpture or work of art -- and therefore copyrightable.  (No need to slap on a logo and turn to trademark law for protection, like clothing or handbag designers do.)

In the landmark case of Mazer v. Stein, 347 U.S. 201 (1954), the Supreme Court traced this protection for 3-D works of art, including sculpture, back to 1870.  Later Copyright Office regulations cited by the Court specifically included "works of artistic craftsmanship, in so far as their form but not their mechanical or utilitarian aspects are concerned, such as artistic jewelry...." (emphasis added). 

Of course, adding an adjective like "artistic" to describe copyrightable jewelry was an open invitation to argue about what is considered artistic and what isn't (with some interesting social class implications along the way) -- but that's a post for another day. 

In the meantime, enjoy your -- or Judith Ripka's -- copyright-protected bling!

May 10, 2006

Counterfeit Travel Advisory

Dress carefully for your European vacation.

After a tourist from Shanghai was fined 50 euros and had his fake Adidas bag confiscated by French customs officials, Chinese travel agencies are warning tourists not to wear or carry fakes to Europe.  The French Embassy in Beijing has denied profiling on the basis of national origin -- but the land of Chanel and Louis Vuitton is serious about targeting consumers as well as producers and retailers of counterfeit goods.  (The maximum penalty is 300,000 euros and 3 years in prision.)

And you thought that snooty waiters were the toughest characters in Paris.

UPDATE:  Later reports indicate that, while the law is real, the Chinese story that sparked such a furor may itself have been fake

April 30, 2006

Kaavyat Scriptor

When the Harvard Crimson reported last week that sophomore Kaavya Viswanathan's novel, How Opal Mehta Got Kissed, Got Wild, and Got a Life (2006), contains a number of passages that are "strikingly similar" to two books by Meghan F. McCafferty, Sloppy Firsts (2001) and Second Helpings (2003), the alleged plagiarism drew national attention.  On Friday, the New York Times reported that publisher Little, Brown would recall the offending book, which had apparently been part of an extraordinary $500,000 two-book deal and had been optioned by Dreamworks for a movie.  Viswanathan has apologized to McCafferty.

Deliberate or not, the plagiarism was obvious.  But apart from the money and publicity, it was nothing that doesn't happen among students every day.  The academic year is ending, final papers are due, and professors (some of whom have been known to be a bit sloppy about citation themselves) are on the lookout for suspiciously familiar works.  The resources available online are all-too-tempting for some students, but the web also makes them easier to catch.  My experience, unfortunately, is that most students who copy are genuinely sorry -- that they've been caught.

The more interesting issue, however, is what constitutes illicit copying within a specific genre.  Even while apologizing, Kaavya maintained that she was writing about her own experiences.  When the book was withdrawn, she and the publisher announced that they would republish with the offending passages rewritten.  As one publishing executive noted in the Times on Thursday, "The teenage experience is fairly universal." 

Had Meghan McCafferty filed a copyright claim, however, a federal court would've been called upon to determine not only how literally certain passages had been lifted (not exactly a challege here), but also the relevance of the similar plots (girl trying to get into elite college), which cannot in the abstract be copyrighted.  This inquiry takes on additional significance in the postmodern era (nod to Foucault) and in light of the involvement of a "book packager" like Alloy Entertainment.  (Check out Professor Laura Heymann's engaging article, "The Birth of the Authornym.")  Can we still tell an "original" from a "copy," assuming that we ever could? 

Actually, yes.  Authors, professors, lawyers, juries, and judges manage this all the time, whether the component parts of the creation are words, musical notes, or lines of software code.  Despite the near-universal fashion among U.S. law professors of attacking intellectual property protection as too extensive -- a position with which I have some degree of sympathy -- even academics don't usually argue that literal copying can't be identified.

In the case of fashion design, however, some people seem to be arguing exactly that.  Communications Professor Siva Vaidhyanathan, for example, told the Marketplace radio program that if fashion is subject to intellectual property protection, "there will be so many ridiculous lawsuits where courts will have to decide between the differences in ruffle (a) and ruffle (b) or hemline (a) and hemline (b)."    

My guess is that Vaidhyanathan wouldn't have found a copyright lawsuit involving words rather than ruffles "ridiculous," even if he has joined many others in disputing the legitimacy of intellectual property protection overall.  Personally, I'd find hemlines easier to distinguish than I would musical progressions.  But the point is that a copy is a copy.  And while pointy-headed intellectuals (myself included) and lawyers may engage in lofty debate about what constitutes copying, a creator's peers -- at Harvard or on Seventh Avenue -- know the score.

April 04, 2006

Jihadi Faux?

OK, maybe Counterfeit Chic was a bit too skeptical.

In the past, I've wondered how much evidence there really is that sales of counterfeit goods fund terrorism.  While patriotic rhetoric can be sincere, sometimes it seems opportunistic or manipulative -- and any market defined as illegal has the potential to be exploited by organized crime or other bad guys.  Drugs or prostitution, for example.  Also, the link between fakes and terrorists always seems to be asserted on the basis of unspecified evidence.  After the story of weapons of mass destruction, I'd like something a bit more definite.  Finally, I have to admit that the stereotypical picture of a terrorist -- a fanatical, misogynistic young male who has spent time in a desert training camp -- doesn't seem to imply intimate knowledge of the latest styles from Louis Vuitton or Prada.  But then, by now we should all know better than to underestimate a foe.

Last week in Maryland, a traffic stop yielded a cache of counterfeit Nike sneakers, LV and Coach handbags, additional illegal merchandise -- and a CD titled "Jihad Freedom for the Slaves."  Not dispositive, but at least suspicious.

March 13, 2006

Do Unto Others

A foolish consistency is the hobgoblin of little minds,

adored by little statesmen and philosophers and divines.

--Ralph Waldo Emerson

Nobody could accuse these anti-copying copyists of philosophical consistency, foolish or otherwise:

La Bas bag from Neiman Marcus $550Luxury retailer Neiman Marcus is suing pet boutique Neiman Barkus for trademark infringement (hat tip to The Trademark Blog), while at the same time distributing mail-order catalogs that contain an obvious (albeit probably legal) Bottega Veneta knockoff (left). 

On the same day that the U.S. Congress passed a new anticounterfeiting bill, a sharp-eyed Counterfeit Chic reader noticed that the U.S. military daily Stars & Stripes was offering advice to servicepeople stationed in Germany on cheap fakes available across the Czech border.  (What happened to those allegations of fakes funding terrorism?)

And Finnish Minister of Culture Tanja Karpela, an anticounterfeiting crusader, was caught on camera carrying a fake Prada bag

I'm reminded of my years studying medival canon law (quite a switch to IP & fashion, but that's a long story for another day) and of a paper that I once wrote linking the "clean hands doctrine" back to the Fourth Lateran Council in 1215.  The clean hands doctrine basically states that if you approach a court asking for relief in equity, you'd better not be guilty of similar misconduct yourself -- or you've got some 'splainin' to do.  Today the doctrine is sometimes applied to actions involving the same set of circumstances -- e.g. the case of a parent who kidnaps a child and then asks for custody.  It would certainly be interesting, though, if a plaintiff suing for IP infringement or a nation demanding international enforcement on behalf of its own industries were vulnerable to charges that it had "unclean hands." 

Gotta love that Golden Rule!  (After all, metallics are once again "in" for spring/summer.)

February 05, 2006

The Inimitable André

Some people pursue an "it" handbag -- real or fake -- as a status symbol.  Others attempt to share the same "exclusive" venue as celebrities and other wannabes -- St. Barths, Aspen, or (this week) the tents in Bryant Park. 

As New York Fashion Week got underway on Friday, the (unwilling to be linked) Wall Street Journal offered advice to would-be gatecrashers at the see-and-be scene:  beware the fashion police.  Despite this imposing security detail, my own experience is that a determined fashionista can beg, buy, or sneak her way in with relative ease (assuming, of course, that a legitimate invitation is not forthcoming).  It does, however, require a bit of advance research.

Impersonating fashion royalty might work for a lookalike -- but it's doubtful.  And in the case of the WSJ's "diminutive thirtysomething white woman" who claimed to be "Andrea Leon Talley," it was definitely a howler.

Not laughing yet?  The inimitable Vogue Editor-at-Large, André Leon Talley, is indeed quite large -- about 6'7" -- and African American.  When he makes an entrance in a spectacular, one-of-a-kind coat or cape, surrounded by his entourage and flashes from the paparazzi, no introductions are necessary. 

And what's the point of airing your best pre-spring finery if not to be yourself?

January 31, 2006

There Goes the Neighborhood

Canal Street in New York will no longer be a regular stop for tourists seeking to purchase fakes if Louis Vuitton's parent company, LVMH, has its way.  The legal strategy of holding landlords responsible for illegal activity that takes place on their premises has yielded another settlement, with a group of landlords last week agreeing not only to prevent sale of counterfeit Vuitton handbags but also to hang warning signs and to allow monitors access to the shops. 

While LVMH has not yet convinced American authorities to penalize the buyers of counterfeits, as French and Italian officials began doing last year, the luxury goods manufacturer certainly wants consumers to think twice.  Following the settlement, Nathalie Moulle-Berteaux, intellectual property director for LVMH's fashion group, said:

Those seeking to purchase counterfeit Louis Vuitton goods on Canal Street must now face the danger of following a stranger down a dark alley or stairway to a hidden room, which serves as both a deterrent to shoppers who fear for their safety and a strong reminder that the sale of counterfeits is a crime.

Interesting perspective for a company that spends millions of advertising dollars creating demand for limited-edition items among female consumers.  No word on whether LVMH will actually be posting scary-looking goons down those dark alleys to deter illicit sales.

P.S.  Thanks to the bloggers of ShangriLaw (esp. La Dulcinea), Blingdom of God, and Stereoette for sending me several links on the settlement last week, as well as two articles in the Wall Street Journal this morning! 

December 27, 2005

Endangered Gators

Earlier this month Lacoste and the U.S. Marshal Service teamed up to conduct raids on 19 retailers and wholesalers across Puerto Rico.  The raids resulted in seizure of over $1 million in counterfeit Lacoste polos and other clothing -- and pending lawsuits against 27 defendants. 

Vacation advice?  Enjoy the beach; avoid the faux wildlife. 

Lacoste trademark