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June 01, 2007

She's Got a Secret

When I was a girl, older and ostensibly wiser relatives used to warn, "You don't just marry a person, you marry the whole family."  If that's the case, then this woman really picked a winner:

Postsecret fake engagement ring

Source:  The Secret Lives of Men and Women, the latest Postsecret book.

Of course, a true romantic would argue that if the husband really didn't know that the ring was phony when he proposed, it doesn't matter. 

Even the family might be excused, depending on the circumstances.  Did they know the stone wasn't a real diamond?  Or was there more sinister motive, such as an attempt to avoid passing a valuable gem to a less-than-valued daughter-in-law?  Then again, perhaps the artificial bauble once had genuine sentimental value -- who wouldn't want to inherit great-grandma's version of the CrackerJack ring from Breakfast at Tiffany's?  (Not to mention the one used in the movie, which Sotheby's could probably auction off for considerably more than an actual gold band.)

Whatever the true story here, a bride can't be too careful, given the state of modern gemology -- as Counterfeit Chic warned last June 1. 

And a would-be groom who proffers a knockoff engagement ring is engaging in very risky behavior -- which may be why our disillusioned spouse labeled her symbolic shackle "plastique." 

P.S.  For a discussion of the law governing engagement rings (although not what happens if, years later, a ring is discovered to be fake), see Professor Rebecca Tushnet's interesting and insightful note, Rules of Engagement, 107 Yale L.J. 2583 (1998).

January 18, 2007

Is it or isn't it?

We see the real ones and the fakes masquerading as real all the time.  Now and then we even see a fake admitting its real identity (and thus staying on the right side of the law).  

So what's left?  Real Louis Vuitton "Speedy" bags labeled as "FAKE" by Korean artist Zinwoo Park, currently part of an exhibit on Andy Warhol and Korean pop art at Ssamzie Gallery.   

by Zinwoo Park

Naturally, there's a commercial tie-in:  the faux/real Speedies have been photographed and silkscreened onto canvas shopping bags, which are for sale.  Andy would've been proud.

Thanks to Buddha Baby for posting the photo!

January 13, 2007

Diamond Conflicts

If there's a sparkle in your eye that can only be matched by a certain stone, but you're concerned about the evils of conflict diamonds, don't sigh and reach for that cubic zirconia yet.  You could opt for a certified rock with peaceful provenance -- or you could wait for the latest crop of lab-grown diamonds to be harvested.

As Counterfeit Chic discussed last spring, several companies have developed cost-efficient methods of creating gem-quality diamonds without waiting millions of years for Mother Nature.  They're physically and chemically identical to the real thing, not associated with bloody civil wars, environmentally friendly, and less expensive.  An update in the Wall Street Journal also indicates that their size and commercial availability are increasing -- watch the red carpet this Hollywood awards season for details.

Of course, the diamond industry is preparing for a war of its own, not least over nomenclature.  Are the new stones "cultured" or "synthetic"?  Expect an administrative and legal battle over that one, all in the name of consumer protection.  If the history of pearls is any indication, however, devising a retronym for what we now call simply "diamonds" is an equally compelling task -- "mined diamonds" or "real diamonds"? 

Of course, the industry would probably find almost anything preferable to "blood diamonds."

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.

November 26, 2006

We Interrupt this Holiday Shopping Season...

...with a public service announcement from Wealth TV.  Did you know -- gasp! -- that there were merchants out there selling fakes?  Watch this 5-minute clip for some facts and figures on counterfeit handbags, sunglasses, and the like, as well as an advance look at Harry Potter book 7, now "available" in China.

November 22, 2006

"Priceless" Knockoff

Getting ready to break out the MasterCard for Black Friday shopping?  Just remember, there are some things money can't buy....

Thanks to Doc Proteus for the "commercial."  And don't forget to check out law prof Vic Fleischer's insights into the priceless brand's IPO. 

November 18, 2006

Ella-mentary, my dear Watson

So, you think that the Canal Street provenience of your "replica" handbag has gone unnoticed, and that you've committed the perfect fashion crime?  Not so fast -- Designer Ella is on the case.  Head over to Pursed Lips, where she discusses (and dismisses) six common reasons for buying counterfeits.  

October 28, 2006

Saturday Morning Cartoons

Who needs television when you have YouTube?  Check out this candid video from StyleWiz, who interviewed New York Fashion Week attendees and asked whether their accessories were real or fake.

Then take a break for commercials, and look at silent but dramatic closeups of a "Louis Vuitton" and a "Gucci" from freereplica and guccilvcom, who are either the same person or clones.  Apparently eBay isn't the only giant online forum where suspect merchandise is advertised.  Catch these clips before they get caught!

October 15, 2006

Soft Soaped

Amid debates over too-skinny models and over-styled celebrities, Dove soap's ad "Campaign for Real Beauty" attempts to differentiate itself by appealing to everyday beauties -- i.e. the rest of us.

First there were the ordinary size and shape models on billboards.  Now, Dove is pulling back the curtain on the artifice of the beauty industry with a short video that shows an average woman transformed into an ad via makeup artists, hair stylists, and Photoshop.  (In other words, this is the type of preparation and retouching that Counterfeit Chic discussed in March come to life.)  Here are before and after shots from the Dove video (HT:  BoingBoing):

Dove's ultimate goal, of course, is to sell more soap.  But is the objective of its "self-esteem fund" to make women and girls appreciate themselves more without excessive dieting and primping -- or simply to lower expectations for soap, which won't work any great transformations?  Perhaps both.

Realistically, though, when have humans ever settled for mere "natural" beauty?  Think back to Cleopatra's kohl-lined eyes, or even earlier to the 100,000-year-old shell beads that some scientists have hailed as the earliest evidence of symbolic thought.  Traces of ochre, an iron oxide pigment, are still evident on some prehistoric beads -- possibly makeup rubbed off of the skin of the person who wore them.  In the words of Professor Clive Gamble, "It's all about identity -- about changing the way you look.  I'm sure that clothing came along in a big way at the same time.  And then there's all that ochre.  These people were interested in changing their colour." 

A little self-esteem, and a simple soap-and-water toilette, are a relaxed corrective to the Photoshoped fakery of glossy magazines.  But if we've been primping for 100,000 years, we're not likely to stop on Dove's video say-so.  Indeed, our elaborate visual tricks may be as authentically human as our own skin. 

October 08, 2006

Ensuring the Goods are GenuINA

The world's largest resale forum, eBay, is taking heat for providing an online outlet for counterfeit goods.  Thus far, the website's response is its VeRO program, which allows trademark owners to request the removal of infringing listings from the site.  But how do brick-and-mortar store make sure that their secondhand treasures are not trash? 

I recently stopped in at the newest branch of a high-end New York City consignment shop, INA, and asked the eponymous owner herself how she screens for fakes.  The answer?  Very carefully.  INA is perhaps best known as both the source of many of celebrity stylist Patricia Field's choices for Sex and the City and the host of a massive sale of much of the characters' wardrobe after the show ended.  With such a fashion-conscious clientele, INA has quite a reputation to uphold.

On the day I stopped by, one of the employees, Khadijah, had just been uptown to Hermes to have a handbag athenticated, and she periodically makes similar trips to places like Louis Vuitton and Gucci -- that is, if  the merchandise even passes INA's initial screening.  After 15 years in the resale business, not much gets by the INA staff.  In the unlikely event of a faux pas, INA waives its usual no-returns policy and offers a full refund, even if the problem is discovered months later and the consignor has already been paid.  The prices aren't rock-bottom, but INA intends to ensure that you get what you pay for. 

Different consignment and resale shops have different policies with respect to suspect merchandise.  At the most exclusive vintage venues, however, the policy is not caveat emptor but caveat venditor

September 30, 2006

Semiotic Disturbance

What would Roland Barthes think of this?

Thanks to janoid for taking this photo in Turkey and posting it on Flickr.

August 17, 2006

Eye of the Beholder

As the Emmy-nominated television show Weeds returns for its second season, Counterfeit Chic takes a look back at the first episode of the series.  The star of this clip is not actress Mary-Louise Parker as a pot-dealing widowed mother of two, but rather her lime green handbag.  It's a designer Rorschach blot, revealing more about the characters looking at the bag than the bag itself. 

 

July 05, 2006

Fifth of July Fireworks

The Fourth of July holiday may be over, but some fireworks are meant to last all year.  Take the Tiffany & Co. Fireworks collection, for example -- or perhaps the knockoff version below:

Vintage jewelry seller Grandma's Top Drawer says, "I purchased this wonderful pin in a shop in Atlantic City called Landau, they specialize in CJ [costume jewelry].  They do a lot that is based on fine jewelry.  This pin is based on the Tiffany and Co. Fireworks collection.  You may have seen them advertised.  This one is done in RS [rhinestones], of course."

Of course, if the governor of New Jersey hadn't shut down Atlantic City's casinos during Independence Day weekend, Grandma might have gotten lucky and bought the real thing.  Gotta love politics.

June 08, 2006

That's Why They Call It a Gold Standard

As if last week's jewelry theme at Counterfeit Chic didn't give the newly affianced enough to argue about, today's Wall Street Journal raises another issue:  is that ring really platinum?

It appears that a new platinum alloy, which contains only 58.5% platinum as opposed to the minimum international standard of 85% (or the more typical 95%), is gaining in popularity.  Since platinum has become popular for both engagement and wedding rings, and the metal has nearly doubled in price over the last year, the cheaper "585" platinum has the potential to sweep the market.

Jewelers are divided over the issue of whether to call the new alloy "platinum," with one camp holding out for an identification between linguistic and metallurgic purity and the other noting that 14-karat gold is still called "gold," just like the pure 24-karat stuff.   The U.S. Federal Trade Commission has solicited comments on the matter, but it has not yet published guidelines.

In the meantime, let the bride beware. 

June 01, 2006

A Fiancé’s Best Friend?

Attention June brides:  Is that rock you've been flaunting really a diamond?

Ever since the DeBeers Group managed to convince a significant part of the English-speaking world that "A Diamond is Forever" -- and that a diamond solitaire ring all but guarantees a successful proposal of marriage -- would-be grooms have been searching for ways to get more bling for their buck.  With the arrival of gem-quality synthetic diamonds, they may have found it. 

Tiny diamond crystals have been produced for industrial purposes for decades, but the past few years have seen companies like Gemesis and Apollo Diamond develop multiple methods for growing large, near-flawless diamonds.  These "cultured" diamonds are physically and chemically "real" diamonds, not cubic zirconia or some other substance, and are for most jewelers indistinguishable from mined diamonds.  Except, of course, for the price.

At present, the U.S. Federal Trade Commission requires that synthetic diamonds be identified as such, and both Gemesis and Apollo inscribe diamonds over .25 carats with unique serial numbers.  In addition, DeBeers has spearheaded the development and distribution of sophisticated technologies that can distinguish some sythetic diamonds from their natural counterparts, albeit without 100% accuracy.  But the myriad small diamonds used in making jewelry are unlabeled and too numerous to be profitably analyzed or documented -- and at least some small synthetic diamonds have been sold without disclosure of their laboratory origins.

DeBeers' greatest fear, however, is not that the public will be tricked into buying "fake" gems.  Instead, its concern is that consumers will embrace synthetic diamonds as equal or even superior to natural ones, and the prices that the cartel has managed to keep high through artificial scarcity will plummet.  Will socially conscious consumers choose synthetic diamonds as an alternative to the "conflict diamonds" that support bloody civil wars in Africa?  Will the world's newest luxury goods customers (e.g. in China) care about a stone's origins?  Will brides-to-be prefer natural diamonds or more carats as a symbol of true love?

DeBeers is well aware of the history of natural v. cultured pearls, and it has no intention of allowing the lucrative mined diamond market to fizzle without a fight.  Still, at some point the high price of ice may melt away, and we'll all be able to dress like Liberace.

P.S.  Hat tip to my fashionable and insightful Georgetown student Sabrina Nguyen for suggesting this topic some months ago.  (Natural gems take time to form....)

May 30, 2006

Counterfeit Antique Chic

If you were "as rich as Croesus," would you wear costume jewelry?

Apparently the original King Croesus preferred the real thing -- and would probably not have been pleased that an undisclosed number of objects representing his 6th century BCE reign have been stolen from a Turkish museum and replaced with fakes.  Among the missing items from the collection, which the Metropolitan Museum of Art returned to Turkey in 1993, is the winged seahorse broach at left. 

Counterfeit Chic asks, "What's the big deal?"  Or, to put it somewhat more eloquently, why does it matter whether an artifact under glass in a museum is the real thing or a virtually identical copy? 

Archaeologists or historians will plausibly argue that only the real thing -- whatever that thing happens to be -- can truly yield information about ancient creative techniques or be subjected to scientific tests to determine age, composition, etc.  But for most of us, an expert replica is equally informative.  Why, then, would we make a special trip to see an historic object but hardly glance at the version in the museum shop?

Alexander Stille takes on this question in his book, The Future of the Past, describing the common Chinese practice of making and displaying museum-quality copies of artifacts -- and the culture clashes that can ensue when Western curators refuse to accept these substitutes in traveling exhibits. 

The concept of "authenticity" is complex, evolving, and culturally determined.  For many of us, there is an intuitive preference for an original over a copy, even when we are objectively unable to tell the difference.  In the case of the golden broach, there is a qualitative difference between real gold and gold-colored metal, but in a museum display the properties of gold versus a substitute are irrelevant. 

At the end of the day, it is often the item's totemic value that matters -- the little winged seahorse has touched history, perhaps even adorned the body of a celebrated figure from the past.  Turkey wanted it back from the Met, and the Usak Archaeological Museum wants it back now, for much the same reason that people bid hundreds of thousands of dollars for the faux pearls previously owned by Jackie Kennedy. 

Reality may be relative, but it carries a high price.

May 01, 2006

Counterfeit Misprint

Judgmentalist posted the photo below on Flickr.  Take a close look at the label of the pair of jeans on top of the stack.

Apparently a Thai denim counterfeiter stored a number of different logos in the computer, ready to print labels on demand -- but there was a bug in the software.  Thus instead of printing a counterfeit label, a line of incorrect code appeared on the tag.

And judging from the comments on Flickr, the jeans with the broken code label are more in demand than the faux/real thing!

April 25, 2006

Pope Pirate I ?

Which is worse -- a pope who wears Prada, or one who wears Prada knockoffs?

According to an article by Stacy Meichtry in today's Wall Street Journal, Benedict XVI's red "Prada" loafers, which have attracted a great deal of attention, may not be the real thing:

The senior Vatican offical says the loafers were actually made by the pope's personal cobbler.  But Prada has refused to confirm or deny the reports, allowing the press speculation to continue.  A spokesman for Prada said the fashion house lacked "the necessary elements" to make an accurate determination.

In other words, only the pope's confessor knows for sure.  And he's not telling.

 

April 13, 2006

Commentary in Crochet

In A Tale of Two Cities, Madame Defarge spends her days knitting an encoded commentary on the Ancien Regime, marking allegedly guilty individuals for execution.

In Anti-Factory's Crochet Bag Project, San Franciso-based visual artist Stephanie Syjuco takes up yarn and needle to forge another (and somewhat less bloody) social commentary -- this time on counterfeit handbags.  By choosing the "lowly" craft of crochet, she intends to highlight the distinction between commercial and vernacular expression and focus attention on "issues of piracy and bootlegging in today's globalized economy." 

The ultimate goal of Stephanie's fascinating project is an art installation -- including not only her own work, but yours as well.  To the barricades!

April 08, 2006

The Great Fake Debate

Check out "The Great Fake Debate" at The Budget Fashionista--including a guest post on the current state of the law from your own Counterfeit Chic.

Not so great fake

April 01, 2006

No Fooling

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

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

What is an “Inspired Designer Handbag”?

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

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

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

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

Or as Rene Magritte might put it:

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

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

March 18, 2006

Truth & Beauty

'Beauty is truth, truth beauty,—that is all 
    Ye know on earth, and all ye need to know.'

--John Keats, Ode on a Grecian Urn

Except, of course, when beauty is NOT truth, as in the case of elaborately retouched fashion photos.  Counterfeit Chic reader Peggy suggests we open our eyes to reality by checking out the faux beauties at Digital Pablo -- just move your cursor over the luminous models to see what they really look like.  Some develop cheekbones or breasts, others lose freckles or blemishes, many get a tan or new hair.  Given that even fashion's "before" pictures are the work of a team of stylists, makeup artists, hairdressers, and a professional photographer, it's no wonder that our own mirrors seem such harsh critics. 

Some retouching is so elaborate that it's unclear whether the underlying photo was really necessary.  Take a look at Behnaz Sarafpour (below) after another retoucher, Glenn Feron, worked his dubious magic for Fashion Week Daily

Behnaz Sarafpour in Fashion Week Daily 9-13-05

In the early years of photography, granting copyright to photos was controversial.  Courts wondered whether a photo was an original artistic work or a mere "reproduction on paper of the exact features of some natural object or of some person."  Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56 (1884).  In that case, involving a picture of Oscar Wilde, the court recognized the creative nature of the work and its copyrightability -- paving the way for not only professional photographers but also retouchers who further alter those "exact features," creating works of near-fiction eligible for copyrights of their own.  (Beyond the question of intellectual property rights, the legal picture is further complicated by the question of the evidentiary value of photographs, a historical subject explored by Jennifer Mnookin.)

According to an aphorism attributed to Otto von Bismarck, those who love laws and sausages should watch neither being made.  It seems that the same goes for those who find truth or beauty in fashion photographs.

March 07, 2006

More Simulacra and Simulations

In response to the Sims' Oscar knockoffs, Marty Schwimmer of The Trademark Blog asks succinctly, "Right of publicity issues?"

The short answer:  Of course. 

The longer answer:  Welcome to the state law morass that governs rights of publicity.  In general, celebrities who have developed valuable personnae have the right to protect it from unauthorized commercial exploitation.  (Everyone's favorite case on this subject, for the amusing facts if not the outcome, seems to be Vanna White v. Samsung Electronics America, 971 F.2d 1395 (9th Cir. 1992), in which Vanna sued the company over an ad with a robot representing her.) 

What does that have to do with a Sim knockoff of an Oscar gown?  If the virtual gown for sale is depicted on the actress who wore it to the Academy Awards, that's an interesting question.

Designers don't compete to dress celebrities out of concern that the poor girls can't dress themselves -- there are stylists for that.  Rather, the free gowns, shoes, handbags (and rumored monetary compensation) are offered in the hope that the celebrity will be photographed and the image will be frequently editorialized.  Money simply can't buy the kind of exposure that a Best Actress winner's dress will receive for free.  So the nominees, presenters, and other beautiful people are in effect renting their celebrity status; their bodies become billboards advertising fashion houses.  The ultimate idea is to draw attention to the brand and sell more dresses -- real, not virtual. 

So, if we view the agreements between designers and actresses as a financial transaction, the use of an actress' image to sell a virtual gown might violate her right of publicity.  After all, what if Reese Witherspoon wanted to make money by modeling virtual gowns (as a Sim, she's certainly tall and thin enough)?  It's a good thing that at the moment her real world far eclipses any virtual one.

For more on law in virtual worlds, check out James Grimmelman's interesting and intelligent article and blog.

And for further reflection on the philosophy of copying, see Jean Baudrillard -- whose text also has a cameo in The Matrix

 

February 22, 2006

Marking Territory

When the law fails to stop knockoffs -- most of the time, in the case of fashion -- manufacturers turn to technology.  In the 1920s, couturiere Madeline Vionnet borrowed a hot tip from criminology and stamped her thumbprint on clothing labels:

This century's technologies are being put to similar use.  Today's Wall Street Journal reports that luxury goods company Fendi had incorporated holograms into its labels:

Meanwhile, scientists are developing DNA technologies to identify consumer goods:

What's next -- "smart" handbags that will recognize and hail other genuine goods?  Embedded microprocessors that will give the wearer access to retail VIP rooms or sample sales?  Geek chic is no longer science fiction; it's fast becoming retail reality. 

Copying for Christ

Of late the current pope's sartorial splendor has been under scrutiny.  The brilliant and often irreverent Blingdom of God goes one step further, suggesting that Benedict XVI follow in the footsteps of his namesake, Benedict XV, who removed the gems from a storied papal tiara, replaced them with glass, and sold the originals to raise money for WWI veterans.

Sacred fakery or faux pas?  From a moral standpoint, surely the former -- after all, the real crowns are supposed to be waiting in heaven.  (See 1 Corinthians 9:25, 1 Thessalonians 2:19, 2 Timothy 4:8, James 1:12, 1 Peter 5:4, Revelation 2:10 ....)

January 28, 2006

Like Beauty, These Knockoffs are Only Skin Deep

The Italian word for makeup, "trucco," is the same as the word for trick -- a linguistic connection that always makes putting on foundation, etc. seem cleverly subversive.  The thing is, I prefer to think of a consumer choosing to create an illusion, not being fooled.

A range of new mass market beauty products, however, are imitating more expensive versions sold only at department and specialty stores, essentially free riding on the goodwill generated by the originals.  Compare Hylexin (left) with Nulexin (right).  Obviously, the packaging is similar, with inverse use of the same colors.  On their respective websites, both claim to be "the first product specifically developed to reduce the appearance of serious dark circles" under the eyes.  The marketing for both versions recalls pharmaceutical ads, with identical information about "clinical trials," but without ever actually naming the "functional compound" used in the product.  Both prominently feature the names of their parent laboratories, Bremmen Resarch Labs for Hylexin and Generix Laboratories for Nulexin.  And there's the twist:  the slogan for Generix is "Providing Affordable, Generic Versions of the World's Most Popular Formulations."  Oh, and the other difference?  $95 for Hylexin v. $39.99 for Nulexin.

Can Nulexin get away with copying Hylexin like that?  Well, the question, like so much of trademark and trade dress law, rests on whether the product creates "consumer confusion."  And that can be a tough call.  True, the boxes look alike, but Nulexin makes a point of proclaiming, "Same dark circle ingredients as Hylexin!"  So the design is clearly intended to make the consumer recall Hylexin, but with a disclaimer.

But wait, why can Nulexin use Hylexin's name, given that Hylexin claims trademark protection?   Under U.S. law, a series of cases dating back almost a century to Saxlehner v. Wagner, 216 U.S. 375 (1910), allows a trade name or trademark to be used for purposes of comparison with a competing product.  Copied perfumes have been notorious in this regard.  "If you like [insert Brand Name here], you'll love [Knockoff Name]!"

What about other intellectual property protections?  Isn't there a copyright problem with the identical language on the websites? That might be Hylexin's best argument against Nulexin, even though there are only a limited number of ways to express the same facts, but it won't keep Nulexin off the shelves.  As for patent, it's not clear that Bremmen has applied for one on their "functional compound"; they're certainly not announcing it if they have. 

So "lex" (right, Latin for "law") plays little role in the Hylexin v. Nulexin battle.  Consumers hoping to fight dark circles just have to keep their eyes open.

January 25, 2006

Some Knockoff Artists Go to Jail, Others Go to Hell

The wildly irreverent and funny Blingdom of God site reports today on the Vatican's decision to enforce copyright in papal writings, including a brand-new encyclical about sex (who reads the others, anyway?).  To back up its claims, the Vatican reportedly sent one publisher a 15,000 euro bill for about 30 lines of text (including legal fees).  With prices like that, those had better be some pretty inspired words. 

The strange part of the Vatican's new awareness of intellectual property rights is that Christianity probably wouldn't have gotten very far if copyright (or related performance rights) had been around 2,000 years ago.  Christian culture, once it moved beyond its Jewish roots, was all about missionary work and permissive appropriation of the message, not excessive control.  Go out and spread the gospel?  Not if you have to pay royalties. 

Blingdom asks, where will all of this end?  What about knockoff papal rings and other jewelry, easily available at tourist shops outside the Vatican or online?  And how many Hail Marys do you have to say if you get caught buying?

Benedict XVI's ring

January 12, 2006

Even if It's Fake, Don't Fake It

Question:  The fab new handbag you're about to buy for Spring 2006 is __________.

Answer:  (a) true

               (b) faux

Answer Key:  Actually, it's up to you.  (You knew it was a trick question, right?)  If you want the genuine article, that's between you and the all-powerful salesperson in charge of the waiting list.  If you make up your mind to buy a knockoff, most likely neither intellectual property laws nor social arguments can stop you.  But whether you're going high or low, buying or selling, don't even try to pass the faux version off as the real deal -- faking it is a major Fashion Don't.  (And the core of a legal don't as well.) 

Todd Goldman lithograph

A couple of years ago, after I dropped a reference to counterfeits into a talk, a fashionable and smart colleague walked up to me and said, "You're so right!  It's all about the handbags!"  Professor X went on to tell me about the fake Burberry she'd just bought.  "But," she added, "it's not about pretending.  It's about showing everybody that it's fake, how you can tell, where you bought it, and what you paid for it."  The same thing happened when I shared a cab in New York with another professor, and then again at another conference, and so on.

Translated into legalese, Professor X was referring to the fact that claims of trademark or trade dress infringement (see FAQs for details) are decided in large part on the basis of "consumer confusion."  The core idea is that if consumers aren't confused about who really manufactured the product, there's no violation.  Lies from an online seller are one thing; obvious counterfeits on Canal Street are another.  (Of course, it gets a lot more complicated than that, and in court luxury companies produce a lot of evidence to show that replicas do cause confusion and related harms).

Among fab fashion editors and dedicated fashionisti, faking it seems to be equally taboo -- for different reasons.  Last year a talented and thoughtful editor at a major magazine explained to me that despite all of the "Splurge or Steal?" and "The Look for Less"-type features, she and her colleagues almost never carry fakes or even inexpensive brand-name versions of the latest "it" bag.  She added, "Well, there is one girl who carries a fake Birkin and acts like it's real, but everybody knows and talks about her." 

The bottom line:  Some adore the real deal, others revel in replicas.  But faking it is definitely a Fashion Don't

P.S.  I can't think about FDs without mentioning the worst perennial Fashion Don't. Ever. Wear. Strappy sandals with sheer stockings.  We've evolved past webbed toes by now.

P.P.S.  Thanks to the superfabulous Manolo for turning our FDs into a Carnivale of Couture!

January 03, 2006

Is Grey the New Black?

Law is often ambiguous or subject to interpretation, but sometimes the black letter rules are clear:  it is illegal to place false labels on knockoffs or to sell replicas as the real thing.  We can debate the merits of the law, discuss the purpose of the law, or ignore the law, but the law still sees certain actions in black and white terms.

There is still, however, quite a bit of grey area in the law -- areas of uncertainty, where both the rules and questions of right or wrong are unclear.  (I suppose law is like mold; the fuzzy grey areas are the ones growing fastest.)  For example, how should we categorize a clearly labeled handbag from an established but inexpensive brand that resembles a much more expensive, exclusive design?

Wilsons Leather BagDesigner Ella has raised this issue recently in not one but two blogs, Pursed Lips and Kiss Me, Stace.  She fell in like (let's reserve love for a grander passion) with and bought the Wilsons Leather Turn-Lock Handbag -- which just happens to resemble the iconic Hermes Birkin (now there's a love object!).  Enter guilt -- but not too much guilt, as one retails for $60 on sale and the other starts at nearly $10,000, if available.  In addition, Ella finds the details of the Wilsons more suitable for her needs.

From a legal perspective, Wilsons is pushing the envelope but probably doesn't have too much to worry about.  There are substantial differences between the two bags (the Wilsons zips at the top, for example), so a court would probably consider the likelihood of consumer confusion to be low.  Futhermore, Hermes has much more pressing concerns in the realm of copying.

From a normative perspective, is there anything wrong with the Wilsons?  Well, that's up to each consumer to decide.  After all, all designers are "inspired" by others, whether they admit it or not, and there are only so many ways to make a receptacle for carrying around the bits and pieces of daily life, a.k.a. a purse.  Still, certain designs are more recognizable and more creative than others.

An informal study of what degree of copying is considered "wrong" within the fashion community leads me to list the following basic objections:

1.  Too literal.  Inspiration is fine, line-for-line copying is cheap and uncreative. 

2.  Too close in time.  It's one thing to reinterpret a 1960s Courreges, it's another thing to knock off last season's Prada.

3.  Too similar a market niche.  H&M or Zara can get away with much more than, say, Ralph Lauren copying YSL.  Issues of competition aside, we simply expect more from expensive design.

Too much grey area?  Well, that's why we have lawyers -- and editors, critics, tastemakers, fashionisti, bloggers, discerning consumers, and you.

January 02, 2006

False Diplomacy

Several news organizations, including Forbes, recently reported that the independent state of Narnia had walked out of the current round of WTO trade negotiations in Hong Kong.  The issue?  Pressure on Narnia from the U.S. and the E.U. to liberalize its clothing/textile sector. 

A bit of advice to the media:  don't believe every press release you read. 

Narnia is not a real country.  It does not have a garment industry.  And just to be clear, The Lion, the Witch, and the Wardrobe is a children's book in the Chronicles of Narnia series by C.S. Lewis and a new Disney movie, not another fictionalized tale of life at Vogue.

December 30, 2005

Bursting Bubbles

Tomorrow night people all over the world will be popping corks from all over the world -- but it's only champagne if it's from Champagne.  France, that is.

Under both international agreements and national laws governing geographical indications, Champagne qualifies as a protected classification.  The idea is that the essential qualities of the beverage are attributable to its home territory, and if it's made anywhere else, it just isn't the same.  (A few California wineries were grandfathered in and continue to produce "champagne," but they're the exception to the rule.)

Of course, in blind tastings during my international intellectual property seminar at 3 different law schools, the students were generally unable to tell the difference between genuine and faux champagne.  I'm not sure whether this demonstrates that geographical indications are overrated or that future lawyers' tongues are sharper than their palates.  To their credit, my international LL.M. students always seem to do a bit better than their American classmates. 

So enjoy your Italian prosecco, Spanish cava, or good old American sparkling wine.  But if you call it champagne, you may be sentenced to a hangover.

December 24, 2005

Faux Ethics

Is a fake ever superior to an original?  Perhaps, at least with respect to claiming the moral high ground.

Take furs.  With the onset of winter weather and holiday parties, the minks, chinchillas, and sables that spent the summer in cold storage have returned to the streets.  In one of fashion's eternal cycles, pelts that were once considered the province of dowagers or Cruella DeVille are once again high fashion. 

This year, PETA has responded with somewhat more clever tactics than the flinging of dead animals or cream pies.  A holiday card sent to Vogue staffers depicted editor-in-chief Anna Wintour in one of her customary furs; the card opened to reveal a skeletal Anna in her lingerie flashing the reader and declaring, "Without fur ... I am nothing."

Yet the New York Times, in last week's Thursday Styles section, took the opportunity to remind us that as recently as 1989 "fun furs" were the preferred wrap of the stylishly dressed, or at least those who feared the red paint brigades.  This faux elegance raises questions that are more than skin deep, however:  Were the women photographed by the NYT some 16 years ago secretly longing for the real thing?  Indeed, do excellent copies exacerbate demand for natural furs?  At the end of the day, can humans really be expected to deny our status as clever carnivores at the top of the food -- or fashion -- chain?  Or, for the anti-Darwinists among us, what's up with that Genesis story -- does God prefer furs to fig leaves?

In short, which is "better" -- real or fake? 

December 23, 2005

Pearls of Great Price

In 1917 Pierre Cartier purchased a mansion on Fifth Avenue in New York from financier Morton Plant.  The price?  $100 plus a string of pearls coveted by Mrs. Plant and valued at $1 million.

In 1957 the same necklace was sold at auction for a mere $151,000.  The mansion still serves the Cartier jewelry company's flagship in New York, and were it ever to be sold, its value would be far greater than the 1917 figure.

The reason for the pearls' decline in value?  The scientific development of extraordinary knockoffs.

In the 1890s, several Japanese scientists were competing to develop a method of inducing oysters to produce round pearls.  Kokichi Mikimoto (yes, also a familiar name today on Fifth Avenue and elsewhere) was among these scientists.  By the 1920s, Mikimoto became the first to develop a commercially successful method of culturing pearls.  Despite an initial outcry against the "fake" pearls -- presumably from those lucky enough to own them -- the extreme scarcity of pearls harvested from coastal waters quickly made cultured pearls the industry standard.  Women everywhere could aspire to own what only a few decades before had been a means of displaying great wealth or royal status.

Kokichi Mikimoto

Today, it is a safe assumption that "pearls" offered for sale are cultured rather than natural.  And modern faux pearls have never seen the inside of an oyster. 

So, are those pearls in your Christmas stocking real?  It depends on who's asking -- and during which decade.

December 19, 2005

The Case of the Brown Paddington

Kudos to The Bag Snob for calling attention to intellectual property law's nasty little secret -- the power of the cease and desist letter.

Apparently the intrepid handbag blog was at the epicenter of a dispute regarding whether online merchant Sophisticated Spirit sells fakes, in particular one chocolate Chloe Paddington bag much desired by Bag Snob reader "X." 

chocolate Chloe Paddington bag

After seeing photos, Bag Snob concluded that the bag was not genuine.  Sophisticated Spirit's lawyer responded with a C&D letter requesting that Bag Snob

1) immediately remove all statements and references to "not allowed to say" from your website, (2) cease posting or allowing others to post statements or making any references to our client whatsoever, and (3) remove the Chloe photos that were taken from "not allowed to say" from your website.

As evident from the edited C&D, Bag Snob complied to avoid an expensive legal defense, but not before the original exchange was repeated (with much commentary) on The Purse Forum

I don't know whether the lust-inducing bag that launched a thousand messages was counterfeit or not, but I do have questions about the lawyer who sent the letter.

C&D letters are a useful legal tool, a first warning to alleged wrongdoers before additional legal action.  Chloe might send one to alleged counterfeit resellers, for example.  However, C&Ds can also have a chilling effect on legitimate and socially beneficial discussion, especially when the recipient doesn't have the money or time to defend against a lawsuit.  As Bag Snob put it, such actions can be "a disservice to the shopping community."  A responsible lawyer should be not only a zealous advocate for her client, but a guardian of the law itself -- and should thus refrain from overbroad demands or inappropriate threats.  (Check out the Chilling Effects Clearinghouse for an advocacy project on this issue.)

Beyond the question of misuse of C&Ds, it's not clear that sending the letter was good strategy.  Even if we assume that Sophisticated Spirit was NOT selling counterfeits, what has she gained?  Sending a C&D letter to an internet site can be like trying to put out a fire with gasoline.  There are probably more references to the Paddington dispute out there, including this post, than there would have been without a C&D.  Social groups react badly to being told to shut up.  Lawyers in the age of open internet communication should consider this when advising clients, even if it means saying, "No, I won't take your money and write a letter -- it would be bad for your business in the long run."

So, what could a good faith seller do?  First, realize that goodwill is the most valuable asset of almost any business, and work to build it.  The web is a locus of social networks that can create trust -- or the opposite.  Become part of the community and give potential buyers reason to trust (what was the seller's fashion background prior to retail?  why is the seller not likely to be fooled by shady suppliers?  how does the seller have access to scarce commodities like the latest "it" bag?  is the seller part of a trade organization with an anti-countefeiting policy?  does the seller have an open forum for feedback from buyers?).  Next, handle any disagreements quickly, professionally, and as quietly as possible. 

At the end of the day, the law can be a very blunt instrument.  (Think clubs and baby harp seals.)  Never underestimate the power of social networks and social controls, or the benefits of harnessing them.

December 18, 2005

Naughty or Nice?

Last week's Wall Street Journal reports that for international travelers, the latest trend in holiday giving is superior qualilty "bootleg bounty" purchased overseas, sometimes even in lookalike packaging.  According to the WSJ,

It may have once been considered tacky to give a knockoff purse or wallet as a gift.  Not any longer.  This holiday season, more gift givers are tapping a new source for presents:  Chinese counterfeit goods.

For holiday shoppers unwilling to tangle with U.S. Customs, New York seems to be an equally popular destination this weekend.  Not only is Chinatown buzzing with the usual muttered offers of "Vuitton" and "Prada" -- openly displayed, behind fake walls, or past locked basement doors -- but pushcart vendors have set up shop near some of Manhattan's priciest real estate.  Not happy with the prices at Saks, Barneys, or Bergdorf?  Just step outside.

Outside Bergdorf December 2005

BTW, the traffic cones aren't VIP parking.  They were placed by the traffic cop just outside the edge of the photo.  (More pics available on Flickr.  And post your own!)

The savvy traveler quoted in the WSJ claims that his family "didn't mind one bit" that the goods were fake.  Hmmm.  Tune in here for future reflections on the messages embedded in buying -- or giving -- counterfeits. 

In the meantime, attention shoppers:  if I'm untying the white ribbon around a certain little blue box in my stocking, it had better be the real deal.