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April 20, 2009

Under London's Bridges

While in London recently, Counterfeit Chic noticed a fair number of people carrying counterfeit handbags -- but none for sale on the streets, apart from a few suspicious items in shop stalls. Why this marked difference in marketing by comparison with other world capitals?  After all, in some cities the fakes are neatly laid out on white sheets on the sidewalk just opposite boutiques selling the real thing. 

The "aha!"  moment, or at least an educated guess, came when I saw this sign set up near St. Paul's Cathedral.  Apparently it's not that the U.K. has managed to end all sales of fake DVDs and watches, but has more or less stopped overt street trading altogether. 


 

Now I wish I'd taken a closer look at the ice cream truck (decorated with presumably unauthorized Disney characters) doing a brisk business not too far away.  Who knew that there was an illicit trade in vanilla soft serve? 

March 17, 2009

More Waves for eBay

As if eBay didn't have enough to manage, what with declines in its core auction business and ongoing litigation over sales of counterfeit goods, now the International Society of Human Rights has made the e-commerce site the backdrop for a public service announcement regarding child labor.

The German PSA opens with an eBay search for an MP3 player, which quickly yields more information about the device's manufacture than the average shopper really wants to know.  To see the entire ad, click on the image below.

  

The good news is that eBay is still hiring -- in the public relations department.

Via Ads of the World.  

October 01, 2008

Spike this Heel!

This month your favorite law prof has been invited to guest blog at Concurring Opinions, a group site run by a number of fabulous colleagues from around legal academia.  Not to worry, though -- Counterfeit Chic won't be neglected.  And the occasional post may even be relevant to both sites.

So head over to Concurring Opinions now to find out why this Dior sandal, with what is reportedly a Masai fertility figure as its heel, is giving me a mental blister. 

 Christian Dior by John Galliano Spring 2009

September 08, 2008

Tattoo Removal

It seems that some forms of contemporary art are more equal than others, at least at the Shanghai Contemporary Art Fair. 

Some of you may remember Louise, artist Wim Delvoye's tattooed creation once dubbed "Professor Scafidi's pet pig" by a friend of Counterfeit Chic.  Apparently she has family...

 

...who will NOT be seen in Shanghai this week after organizers informed the artist that live animals are outside the categories of display.  According to the Shanghai Daily, the gallery representing Delvoye in Beijing believes that the real reason was concern over public reaction.

Whatever the true concern, it probably has little to do with the use of Louis Vuitton's logos.   

September 04, 2008

Synchronized Stealing? Artist Alleges Spain's Swimsuits Infringed Copyright

The Spanish synchronized swimming team certainly knows how to make a sartorial splash. 

First its suits festooned with waterproof Christmas lights were banned from the Olympics as illegal "props." 

Now, Counterfeit Chic has learned, German graffiti artist CANTWO has alleged that the replacement suits, which feature a menacing gangsta character with a backwards baseball hat, are unauthorized copies of his original artwork from 2001.  Not exactly what the artist had in mind, as his website invites visitors to "study my artwork and get inspired...but don't steal." 

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As if Spain's Olympians needed more controversy.

Many thanks to Andy Eberle for the tip!

August 28, 2008

All's Well That Ends Well: LV v. Nadia Plesner

Whatever happened to Nadia Plesner, the young Danish artist who decided to design for Darfur -- using Louis Vuitton trademarks?

 Nadia's design (left) and the LV Audra bag

 

As Counterfeit Chic readers may recall, LV objected to the unauthorized use, and a brief legal skirmish ensued.   Earlier this summer Nadia's website displayed a protest version of the design:


Now, however, Nadia has established a multi-purpose charitable foundation, whose website makes no overt mention of LV but merely thanks readers for "all the wonderful support of my first Simple Living campaign and the lawsuit."  The original little Sudanese child no longer carries a handbag along with her pink-clad cainine accessory, but she does have a new friend -- "Miss Size Zero 2008." 

 

And they all lived happily ever after.  Assuming, of course, that the owner of the "Little Miss" family of trademarks doesn't mind Nadia's latest T-shirt/poster campaign:

 

August 26, 2008

Speeding Ticket for Fast Fashion

...I see that the fashion wears out more apparel than the man.

--William Shakespeare

Even as lovers of cheap chic on this side of the pond eagerly await the arrival of the U.K.'s Topshop in New York, the House of Lords has officially frowned upon fast fashion.  In its report on "Waste Reduction," the Science and Technology Committee noted:

This problem [of a throwaway society] is particularly apparent within the textile industry, where the culture of "fast fashion" encourages consumers to dispose of clothes which have only been worn a few times in favour of new, cheap garments which themselves will also go out of fashion and be discarded within a matter of months. Mr Paul Ozanne, National Recycling Co-ordinator at the Salvation Army Trading Company commented that these garments "are quick to produce; the turnover is very fast; and the length of time they are able to be worn is very short.". Furthermore, the rapid production of cheap clothes involves the use of low quality materials in garments of high complexity, which makes it difficult to capture any value from the material at the end of the garments' lives. Mr Alan Wheeler, National Liaison Manager at the Textile Recycling Association, commented that "fast fashion" items were "harder to re-use" and that there was "not much thought about how recyclable an item is at the end of its useful life."

The Daily Mail immediately took up the debate, pitting its own style expert (anti-fast fashion) against the editor of British Vogue (pro-cheap chic).  Interestingly, none of the discussion -- in Parliament, in the newspaper, or on Jezebel, which followed with another analysis -- brought up the issue that has caused Counterfeit Chic to applaud the growing slow fashion movement:  namely, that fast fashion is fraught with fakes.  (Yes, even Topshop goes a bit to far with its designer "inspirations" on occasion.)  Given that not only counterfeit labels and logos but also unauthorized copies of fashion designs themselves are illegal in U.K., surely initiatives that not only promote sustainability but reduce lawbreaking would be welcome.

The committee report itself was a bit vague on legal solutions, though it did applaud a private initiative by Marks & Spencer that rewarded donations of clothing to Oxfam with M&S gift certificates.  Still, it seems that most of the poorly constructed, last season fast fashion out there is likely to end its short life in a landfill alongside its own plastic bags. 

Or on the floor in the back of the closet. 

Thanks to the ever-alert Larry Abraham for the tip!

P.S. On the same day that the House of Lords report appeared, the New York Times offered its own subtle indictment of fast fashion.  Worse than the exploitation of child labor, worse than the destruction of the environment, worse even than the violation of intellectual property law, it's the dreaded whisper of one's own internal fashion critic:

You can rationalize blowing your rent on Gucci’s $1,900 swinging fringed boots — by telling yourself you’ll spend only $89 for Zara’s copy of Gucci’s mini peasant dress. But you would know immediately that your cheap-jack Doctor Zhivago outfit wasn’t working, and then what?

August 25, 2008

Swim Naked

If hosting the Olympics were an event in itself, China would certainly have won gold.  The stories leading up to Beijing were all about pollution, oppression, and politics; the news during the games was about the incredible spectacle and record-breaking feats of athleticism -- with just a few controversies mixed in to keep things interesting.

Speedo LZR RacerBut enough of allegedly underage gymnasts, disputed decisions, doping disqualifications, split-second timing devices, and lip-synching performers.  What about the Olympic dress codes? 

Too Buoyant?  After swimmers wearing Speedo's LZR Racer repeatedly toppled world records, some coaches and officials charged that the suit offered an unfair advantage and might run afoul of rules that bar adding buoyancy.  The Italian team coach even referred to the Speedo as "technological doping" -- at least until one of his swimmers won gold while otherwise attired. 

Too Bare?  While past international gymnastics competitions have seen point deductions for leotards that were a bit too revealing, it was women's beach volleyball -- and NBC's incessant un-coverage of it -- that caused controversy.  Apparently the rules that put babes in bikinis and guys in shorts and tank tops were established almost a decade ago, but eyebrows (and television ratings) are still raised. 

Olympic beach volleyball champions Misty May and Kerri WalshThe official regulations of the Federation International de Volleyball are somewhat flexible and gender neutral, allowing either bathing suits or shorts with tank tops optional.  However, they defer to specific tournament regulations -- and the extensive Olympic rules apparently specify the skimpiest possible costume for women and the most modest for men (shirts required).  It's not clear what the athletes themselves would prefer, but how many guys wear shirts on the beach?

Too familiar?  And then there was the shopping.  Gymnast Shawn Johnson apparently planned to celebrate her Olympic victories with a trip to Beijing's notorious Silk Market, whence a false prophet had whispered that True Religion jeans were available for a mere USD $12.  Sure -- and that medal is solid, 24-karat gold.

Tourists, too, were lured with not only illegal labels but also enthusiastic adaptations, like these "I heart China" T-shirts snapped by lee on the road.  (Note to New York:  We still love you, too.)

 

No doubt London, which has the unenviable role of following a championship Chinese performance, will have its own clothing-related controversies in 2012.  Of course, the IOC could always simplify matters by reverting to the dress code of the original Olympics -- laurel wreaths optional.

 

August 13, 2008

More Auction Action: eBay defeats L’Oréal

In a decision that crossed the American/European divide in the eBay counterfeit controversy, a Belgian court yesterday held that eBay was not liable to L’Oréal’s Lancôme (decision here).  Of course, L’Oréal has other cases against eBay pending in France, Germany, Spain, and the U.K as well. 

So far that makes 3 victories for the luxury labels irked by eBay (Hermès and LVMH in France; Rolex in Germany) and 2 for the auction giant (Tiffany in the U.S.; L’Oréal in Belgium), though both losing plaintiffs plan to appeal. 

And in the meantime, Lancôme probably has something to cover that black eye.

Related posts:  Tiffany v. eBay 2:  The Appeal, Euros and Scents: More on LVMH v. eBay, Strike 2: eBay loses to LVMH, Party TimeDefendant du Jour

August 08, 2008

Olympic Ambiguity

8-8-08 -- a most auspicious day for the start of the Olympics!  And after years of preparation, including everything from cleaning the air to washing out the mouths of dissidents, China has also concluded that "Selling fakes MAY constitute crime!" 

 by Click Cluck

Hey, it's a start.  

Many thanks to Click Cluck for uploading the photo on Flickr!  And check out the other sign translations in the set, ranging from amusing to incoherent.  

Good luck, Olympians!   

July 30, 2008

Alien Sedition?

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

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

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

Via New York Daily News, WWD

July 25, 2008

Hmmm...

Is fast fashion a virus?

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

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

Via the Wooster Collective

July 21, 2008

No, No, Naf Naf

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

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

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

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

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

July 11, 2008

Euros and Scents: More on LVMH v. eBay

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

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

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

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

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

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

July 10, 2008

String Theory

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

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

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

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

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

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

Adipose babies

Ood

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

July 01, 2008

Pope Pirate I, Part II

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

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

But who designed the Easter bonnet?

Via His Superfabulousness, the Manolo.   

June 30, 2008

Strike 2: eBay loses to LVMH

The gavel has fallen -- and hit online auctioneer eBay pretty hard.

In a much anticipated decision, a French court today ordered eBay to pay LVMH 38.6 million euros for allowing the sale of counterfeits on its site.  The award is allocated among several divisions of the luxury conglomerate, primarily LVMH and Christian Dior Couture, with smaller amounts to perfume brands Christian Dior, Givenchy, Guerlain, and Kenzo. 

Following on the heels of Hermes' victory against eBay in another French court earlier this month, the decision essentially shifts more of the responsibility for policing offerings to the auction site, which profits from each sale -- counterfeit or not.  After learning of its loss in court, eBay immediately announced its intention to appeal and went on a rhetorical offensive, stating, "Today's decisions are not about fighting counterfeiting. It's about LVMH's desire to protect commercial practices that exclude all competition." 

Obviously the French judges haven't bought eBay's argument -- but will home court advantage help?  Or will the long awaited U.S. decision in Tiffany v. eBay be strike 3 for the auction site?  Stay tuned.

(For background on the case, click here.) 

June 04, 2008

Party Time

Summer's hottest trend is here!  No, it's not gladiator sandals or splashes of superhero-worthy primary color -- it's lawsuits claiming 3rd-party liability for copyright and trademark infringement. 

Today a French court ordered eBay to pay Hermes 20,000 euros after the internet auction site allowed a user to sell 3 Hermes handbags, 2 of which turned out to be counterfeit.  The court's decision is also supposed to appear on eBay's French homepage, but no sign of it yet.  The site does have an extensive anti-counterfeiting page, though.  (Thanks to Counterfeit Chic reader Deb Mason for the tip!)

The ruling in favor of Hermes could be just the tip of the iceberg for eBay's French operations.  20,000 euros may cover a couple of basic Birkins, but, in a separate pending case against eBay, luxury giant LVMH has demanded damages of €20 million.  According to Le Monde, a decision is due by the end of the month.

Meanwhile, on this side of the Atlantic, the U.S. Supreme Court has let stand a 9th Circuit decision in Perfect 10 v. Visa, absolving the credit card company of liability for facilitating sales of infringing goods.  As WWD's Liza Casabona notes, however, questions of contributory and vicarious liability will continue to occupy the legal landscape, with a decision in Tiffany v. eBay still undecided.  (Thanks for the quote, Liza!)

Seems that the lawyers pursuing 3rd-party liability claims on behalf of their fashion clients have come up with not only a legal strategy, but a lifestyle mantra:  After the law shows up at one party, move on to the next.  Not a bad way to spend a hot summer night.

Continue reading "Party Time" »

May 15, 2008

Colonialism, Culture, and Copying

Cultural appropriation is a frequent theme in the world of fashion, from YSL's famous Ballets Russes collection to more or less any Dries Van Noten season.  In today's New York Times, Cintra Wilson casts a Critical Shopper's eye at the exuberant creations of Christian Lacroix -- and while she chastises the designer (and his clientele) for failing to age gracefully, the boutique's excesses inspired a series of creative mixed metaphors.  How often does slipping on a beaded bangle lead to colorful post-colonial political commentary?

While the rest of the developed world is circling Africa like a kettle of vultures, the French seem to be getting sentimental about the aesthetics of their old colonies.  It's a casual approach to the perpetual ransacking of pre-conquered cultures, old icons conveted into trendy adornments.  Old Gods are rendered symbolically meaningless at the moment that the dominant culture declares them adorable.  High fashion 1, Africa 0. 

For a lighter look at the connection between borrowed spirituality and material culture, enter the Blingdom of God.  Or pile on a few baubles of your own and enjoy my favorite work by Yeats.  Agree or disagree with his eloquent shrug at the end, there's no doubt that this coat's a  classic:

I made my song a coat 
Covered with embroideries 
Out of old mythologies 
From heel to throat; 
But the fools caught it,    
Wore it in the world’s eyes 
As though they’d wrought it. 
Song, let them take it 
For there’s more enterprise 
In walking naked.

Lacroix Spring 2008

April 28, 2008

The Naughty List

Uncle Sam has released this year's naughty list, a.k.a. the 2008 "Special 301" Report, analyzing other nations' intellectual property enforcement efforts.  And sure enough, China is getting a lump of coal in its stocking this year, along with 8 other "priority watch list" countries and 38 on the lower-level "watch list."

Norman Rockwell 1939

In other bad news for China, Louis Vuitton has decided to pick up its toys and go home.  The boutiques will stay -- but amidst anti-French protests relating to Gallic support for the Dalai Lama, LV has postponed the "China Run" vintage car rally originally scheduled for late May

For smokin' analyis of China and intellectual property, remember to vist IP Dragon

April 27, 2008

Copying for Charity

Click for larger imageJudging from my inbox, more than a few of you have heard that Louis Vuitton has sued Danish artist Nadia Plesner over the t-shirt design at left. 

The image casts a Sudanese child from the troubled Darfur region in the role of Paris Hilton, complete with small pink-clad dog and designer handbag, in order to criticize the media's excessive coverage of attention-seeking celebutantes rather than genocidal conflict.  In Nadia's words, "Since doing nothing but wearing designerbags and small ugly dogs appearantly is enough to get you on a magasine cover, maybe it is worth a try for people who actually deserves and needs attention."  (The lack of undergarments may also evoke Ms. Hilton, but the artist doesn't mention her model's unmentionables.) 

The issue for Louis Vuitton, however, is that Nadia didn't just depict any designer bag, but a version of the iconic Multicolore toile pattern, complete with the LV initials morphed into dollar and pound signs.  The company objected to this use as trademark infringement and asked Ms. Plesner to stop selling the t-shirts.  The letter is interesting in itself, since the tone is fairly unusual for a C&D -- "Hey, we're all artists here, and Takashi Murakami and Marc Jacobs collaborated on that bag," rather than the typical demands for an accounting of all units sold, disgorgement of funds, destruction of all remaining merchandise, and the head of the offending party on a platter.  It even offers a nod to Nadia's "Save Darfur" mission.  Still, LV very clearly wanted the shirts depicting its trademarks off the market -- and Nadia responded with a defense of her freedom of expression.  (She also somewhat surprisingly started out by arguing that her drawing refers to designer bags in general and not LV in particular, but more on that in a moment.) 

After Nadia and Louis Vuitton failed to reach an agreement, the company filed the lawsuit that has drawn far more attention than Nadia's initial project.  Without deciding the case, let's take a look at why there's an impasse. 

Q.  Why do Louis Vuitton's lawyers object to the t-shirt?

A.  The simplest answer is that their job is to protect LV's trademarks.  And, legally speaking, they're supposed to object to unauthorized commercial distribution of those marks.  A trademark holder that doesn't enforce its rights can ultimately lose them, as the marks may be considered abandoned or even generic.  Every time you ask for a Kleenex instead of a tissue or make a Xerox instead of a photocopy, a trademark lawyer somewhere gets another grey hair. 

The same is true for the extremely recognizable Multicolore pattern, which has been copied over and over again and is the subject of ongoing litigation between LV and other manufacturers.  It is the responsibility of LV's lawyers to make sure that the public's association between the Multicolore design and the company is not weakened in any way.  Thus Nadia's claim that her design "is inspired by - and refers to - designers bags in general - not a Louis Vuitton bag" is the last statement that would be reassuring or persuasive to a trademark lawyer. 

Q.  But Nadia created the t-shirts for charity -- doesn't that matter?

A.  Yes and no.  We all love a good cause, and we admire people who actually take action when confronted with evil. 

From a trademark lawyer's perspective, however, unauthorized commercial distribution is a threat, whether or not the profits go to a good cause.  Even charities that hold trademarks have problems protecting their marks from other philanthropic parties with similar purposes.  A representative of a prominent health-related nonprofit organization once told my class that she spends much of her time admonishing other groups that have put her organization's logo on their educational literature or their healthy products.  As she put it, "We're a charity, but we're not in the business of giving away our trademark."  Similar issues arise when trademarks are "borrowed" for religious purposes.  Trademark owners who object aren't necessarily grumpy atheists, just concerned about their marks. 

LV's initial letter to Nadia reflects this tension between sympathizing with social concerns and protecting intellectual property -- hence the unusually moderate request and tone for a C&D. 

Q.  So why didn't Louis Vuitton just give Nadia permission to use its trademark?

A.  One strategic option for any company whose trademarks have been used without authorization is to give permission, and also exercise some control, via a licensing agreement. 

Of course, Nadia didn't ask for permission.  And Louis Vuitton may or may not have been willing to grant it if she had, since its marks are constantly copied and copied again.  Also, while Nadia's stated intent was to criticize media attention to celebrities instead of tragedies, her profits from the t-shirts go to Divest for Darfur, an organization that opposes financial investment that ultimately funds genocide.  The presence of LV trademarks on the t-shirt could mistakenly be read to imply that Louis Vuitton had made investments that were helping to fund genocide -- not a message that the company would want broadcast, even in error.  In U.S. legal terms, LV could argue that Nadia was not only engaged in dilution of its well-known marks by blurring (basically overuse by non-owners) but also by tarnishment (negative association).

Q.  What about freedom of expression?

A.  Free speech is an important right, and one that every democratic society protects in different ways.  Intellectual property law establishes exclusive rights in specific expressions, but also attempts to maintain a balance between freedom of expression and creators' rights. 

In other words, at the same time that the law protects trademarks, it creates defenses for those who wish to use them in discussion (like the use of the name "Louis Vuitton" thoughout this post).  Different countries have different trademark laws and thus different defenses to unauthorized use.  In the U.S., the general standard is "fair use," including parody, while other jurisdictions have specific rules about what is or is not allowed in terms of expression.  To complicate matters even further, fair use of a trademark and fair use of copyrighted material are subject to different standards. 

In general, under U.S. law a visual artist is safer using a trademark to comment on or make fun of the trademark owner itself (parody) than to make other social statements (satire).  After all, it may be necessary to make limited use of a trademark to make a statement about its owner, but statements about other things can be made using other vocabulary.  Of course, whether or not something qualifies as parody or other protected speech may require a judicial decision.  Nadia writes that her goal was to make a statement about media coverage, not about Louis Vuitton. 

In her response to Louis Vuitton, Nadia also mentions Zbigniew Libera, a Polish artist who created LEGO concentration camp sets with blocks donated by the Danish company.  In the finished versions of the controversial work, Libera included a statement that his work was sponsored by LEGO.  The company vehemently denied knowlege of exactly what the artist had intended and filed a lawsuit that was later withdrawn.  The story is a cautionary tale for companies who choose to support artists -- whether by donating plastic blocks or the use of their designs -- but is ultimately quite different from Nadia's choice to act unbeknownst to Louis Vuitton. 

Q.  Do you think Paris Hilton will sue Nadia?

A.  Actually, I try not to think about Paris Hilton. 

But if I did, I might wonder whether she would assert a state law right of publicity claim against Nadia, much as she did against Hallmark.  If Vanna White can win her case against Samsung for posing a robot in a blonde wig on a game show set, then Paris could consider suing an artist for selling images of an African child with Hilton-style accessories.  Paris' case would be weaker here, however, since Nadia is criticizing the media for its coverage of Hilton's attention-seeking behavior and perhaps impliedly criticizing Hilton herself, rather than simply selling greeting cards or electronics. 

Q.  How can artists like Nadia avoid lawsuits by trademark holders?

A.  There's a lot of confusion out there as to what artists can and cannot do legally with corporate logos. Unfortunately, the law in this area is not entirely clear, and greater specificity would benefit both trademark holders and artists.  There are, however, some general principles.

For an independent artist, the safest option of all is not to use others' trademarks.  Any such use is a risk, and defending a lawsuit is time-consuming and expensive, even for an artist who ultimately wins.  (Now you know why so few lawyers have become great artists -- we're trained to think about worst-case scenarios.)

That being said, corporations are significant players in modern life, and as a society we need to be able to engage in commentary and criticism, whether that takes the form of op-eds or visual art.  A trademark is shorthand for a corporate entity itself.  The law thus recognizes and protects some critical or discursive use of trademarks. 

Before an artist uses a corporate trademark, she should think about whether or not her intention is to comment on the trademark holder -- and assess the risk according to the relevant national law.  If the use of someone else's trademark is just to make a visual joke or to sell the artist's own products, then that use is lawsuit bait, and the artist may very well be liable for damages.  And by the way, some companies are more determined than others when it comes to enforcing their rights. 

Of course, an artist's intent may be to transgress boudaries and challenge the law, but she should at least figure out where the line is before crossing it. 

Q.  And how should companies respond to unauthorized use of their trademarks by artists?

A.  As we've discussed, trademark holders are required to attempt to assert control over unauthorized uses, lest they lose their trademark rights entirely.  But for most holders of frequently copied trademarks, enforcement is a matter of allocating limited resources -- and managing public relations.  It's impossible to stop every counterfeit handbag seller on every street corner in the world, or to review every art school sketch to determine whether it's fair use.  Commercial sales in large multiples tend to make trademark lawyers see red; a one-off, transformative use may be worth only a shrug and a sigh. 

Q.  Who's going to win this case?

A.  That's a question for a Danish court -- although a settlement is still possible.  In the meantime, don't try this at home. 

Many thanks to Jenny Leugemors and Jayshree Mahtani, the first two to alert Counterfeit Chic to the story!

Via TorrentFreak.

April 23, 2008

White Knight or Snow Job?

As eBay awaits decisions on both sides of the Atlantic regarding its potential liability as a forum for the sale of counterfeits, eBay France has published a 300-page white paper on content-filtering measures.  Does the online auctioneer expect to have to alter its policies, or is this just an attempt to guard against future complaints?  Time will tell. 

Via pMdM

April 17, 2008

Too Rich or Too Thin

France is considering a law that would ban the promotion of "excessive thinness" -- and L.A. Times reporter Geraldine Baum was on the scene in Paris to find out what that might mean for the "pro-ana" websites and fashion-related advertising that the bill's sponsors would like to eliminate. 

As your favorite law prof discussed with Geraldine (alas, via long-distance call rather than a trip to the City of Light), addressing eating disorders is an important and laudable goal.  After the death in 2006 of a young Brazilian model, Ana Carolina Reston, fashion week organizers in several major markets adopted minimum BMI requirements for the runway, and others expressed concern about the issue.  The proposed French law would be largely unenforceable -- but it would make a strong public statement. 

In the U.S., such legislation would very likely run afoul of First Amendment free speech protections.  Unless and until science establishes a direct connection between fashion photos and eating disorders, the law can't stop individuals from advocating skeletal standards of beauty.  The government, the fashion industry, and the mainstream media can, however, encourage girls to reject starvation chic. 

You, too, can make a difference.  Just a few Euros per week will buy this young woman a baguette.  And not the Fendi variety.

P.S.  Seriously concerned about your health or that of a friend?  Click here for a helpline and more information. 

April 11, 2008

Stars and Stripes Forever

European fashionisti are buzzing about yesterday's European Court of Justice decision in favor of adidas and its famous 3-stripe logo. 

The German athletic apparel giant sued several competitors, including H&M, in Dutch court, alleging that their use of 2-stripe designs constituted trademark infringement.  Before ruling on the infringement question, the Dutch court asked the ECJ whether apparel designers' general need for access to such a basic design element -- stripes -- could be taken account in the infringement case. 

The ECJ's answer?  No.  Infringement is determined by whether there is likelihood of consumer confusion between the adidas mark and its competitors' versions.  If there is a clear connection in the public's mind between 3 stripes and adidas -- and there is -- arguments about the need to preserve general access to stripes are irrelevant.  The case will now go back to the Netherlands to allow the court to conduct a standard consumer confusion analysis. 

Wait!  Does that mean that no designer can ever again use 3 stripes, or 2, or 1 for that matter? 

Balenciaga Fall 2007No, not really.  Designers use stripes all the time without arousing adidas' anger -- take a look at this Balenciaga jacket from Fall 2007, for example.  So long as the stripes don't confuse the public as to whether the item is an adidas product, no problem.  And since adidas sells very few USD $2,000+ blazers in exclusive department stores, this isn't likely to become an issue.  As the company noted in a press release, "We do not seek to prevent the use of decoration, but the use of striped markings that confuse consumers, or cause them to make a link with our company and its famous trademark."

Presumably the military won't have to abandon sergeants' stripes, either.

Still, at least direct competitors in the sporting goods arena are likely to avoid striped logos going forward.  Could companies monopolize other basic design elements?

Don't panic yet.  A decade ago, Converse and the Dallas Cowboys famously sparred over a star, another basic design symbol that each was using as a trademark.  They both still own multiple registrations for a five-pointed star, albeit on different goods -- the football team doesn't seem to be in the shoe business.  And neither seems too concerned about YSL's spring accessories collection.

Converse (left) and Cowboys

YSL Spring 2008

The bottom line is that yes, a company's registration of a basic design as a trademark will create limitations on others' use of that symbol in ways that might be interpreted as indicative of the source of the goods.  But use of stripes or stars as mere decoration is fine unless consumers get confused. 

Most companies, moreover, don't select basic symbols standing alone as their logos.  Why?  Because it's too much work to create an association in the consumer's mind between parallel stripes or a single star and the source company.  It's much easier to just write your company name on the product and be done with it. 

The adidas case presents an interesting issue -- but not an immediate threat to the basic vocabulary of design.  Anyone attempting to imitate adidas' 3-stripe trademark, however, may find himself wearing prison stripes instead. 

P.S.  For more on law & stripes, click here.   And if you're a sneaker fan, don't miss the new book on Adi and Rudi Dassler and the fraternal feud that gave the world adidas and Puma.   

March 05, 2008

Marc Wraps Up Swedish Scarf Settlement

Designer Marc Jacobs, who was recently accused of copying a Swedish scarf sold as a tourist souvenir in the 1950s, has settled the dispute for an undisclosed amount.  Goran Olofsson, whose father created the original scarf, contacted the design house two weeks ago -- and notes that it "took quite a long time" to reach an agreement.   Justice in Sweden must be speedy indeed.

Related post:  Marc Jacobs' Swedish Smorgasbord Selection

March 02, 2008

2nd Question about a Scotsman's Kilt

For an oenophile, champagne comes only from Champagne.  According last week's ECJ opinion, parmesan cheese comes only from Parma.  And now kiltmaker Howie Nicholsby would like official assurance that Scottish kilts can only come from Scotland.

The Edinburgh-based designer, disgusted by cheap imported kilts that he describes as like "wearing a dishcloth," has asked a member of the European Parliament to pursue protected designation of origin (PDO) status for Scottish kilts.  In order to be described as Scottish, kilts would have to be hand sewn in Scotland of pure wool. 

While this request will no doubt cause a few chuckles -- not least because very few male IP lawyers or non-Scottish MPs would wear something so closely resembling a skirt -- it's actually part of a trend toward a more inclusive understanding of protected geographical indications, at least outside the U.S.  International IP law recognizes two basic categories of GIs:  (1) wine and spirits, and (2) other -- with "other" usually considered in terms of agricultural products.  There's nothing in the definition of GIs, however, that prevents the protection of other things, like regional handicrafts.  In fact, as I noted as part of a symposium panel organized by the Fordham Intellectual Property, Media & Entertainment Law Journal (see Summer 2007 issue), Mexico pioneered the use of GIs for manufactured products and the majority of registered GIs in India are traditional handicrafts, including many textiles. 

From a cultural property perspective -- one of my favorite topics, as some of you know -- Nicholsby's request raises another interesting issue.  His proposed criteria, like that of other PODs or GIs, focus on kilts' place of manufacture and composition.  There's nothing about historic tartans or styling; in fact, many of Nicholsby's own 21st Century Kilts are anything but traditional.  There's the pinstriped group, available with matching waistcoats and jackets; the camouflage collection; and even denim and leather versions (which might not qualify as "Scottish kilts" under the proposal).  In other words, Nicholsby's desire to protect a Scottish cultural product from cheap knockoffs doesn't reflect an intent to preserve some quaint Brigadoon-like past.  His own collections are evidence of an understanding that styles change and culture evolves.  But Nicholsby also recognizes something special about the link between kilts and Scotland that goes beyond a Mel Gibson costume drama.

Oh, and as for that 1st question about a Scotsman and his kilt -- click the copyright symbol below for the uncensored answer.

Thanks to Professor Beth Noveck for the tip!

February 20, 2008

Marc Jacobs' Swedish Smorgasbord Selection

Has Marc Jacobs spent too much time hanging around with Richard Prince?  The celebrated fashion designer collaborated with the iconic appropriation artist on the latest insta-"It" bags from Louis Vuitton -- and might have picked up a tip or two about copying in the process. 

It seems that a scarf celebrating "Marc Jacobs since 1984" may originally have read "Linsell," the name of the small Swedish village it depicts.  And now one of Linsell's native sons, Goran Olofsson, claims that his father Gosta created the scarf along with other tourist souvenirs in the 1950s, and that he potentially inherited his father's copyright. 

Historians of tourism (yes, really) and international copyright lawyers will no doubt spill a great deal of ink over this small square of silk.  But before the war of words gets underway, what are the basic legal questions? 

Initially, assuming that Gosta Olofsson is the original artist, was the design protected under Swedish copyright?  And for how long? 

Next, if the scarf was indeed copied, where did the copying and distribution of the scarf take place?  And was a copyright in the design also recognized under that country's (or those countries') laws?

Marc Jacobs presumably designs whereever he goes, but principally in both New York and Paris.  Until 1990, copyright protection in the U.S. was dependent upon a series of formalities, including registration with the Copyright Office -- something that a foreign souvenir-maker would've been unlikely to consider.  No registration, no protection -- and the work would've been part of the public domain.  But wait, not so fast.  Section 104(A) of the U.S. Copyright Act provides for restoration of copyright in some foreign works that fell into the public domain because their owners failed to comply with then-required U.S. formalities.  If the original Olofsson work meets the requirements of this section, it could still be subject to copyright in the U.S., though the law also provides for a period of immunity for parties who relied on the work's being in the U.S. public domain. 

On the other hand, countries that were members of the Berne Convention for the Protection of Literary and Artistic Works back in the 1950s, including both France and Sweden, would offer artists from other member nations the same copyright protection as they would their own citizens -- without formalities and irrespective of the law of the country of origin of the work.  Thus, if the alleged copying and distribution took place in France, the relevant copyright law would be French.

And the analysis continues...for every country in which Marc Jacobs may have distributed the scarf.

Then, of course, assuming valid copyrights and actual copying, there's the question of whether the younger Mr. Olofsson actually owns the copyright, or whether long-lost Swedish half-siblings or aging co-creators will suddenly appear on the scene. 

At the end of the day, it's a safe bet that it will cost a krona or two to figure out whether Marc Jacobs borrowed a work from the public domain, infringed a copyright, both (in different jurisdictions), or neither.  And if all of this sounds as incomprehensible as a recipe from the Swedish Chef, well, welcome to the wonderful world of international copyright law. 

(Note:  All umlauts omitted.  This problem is dotty enough.)

Via Gawker and Sassybella

January 06, 2008

Out of Africa

Fashion designers make no secret of ransacking the world's closets in search of inspiration.   The world, however, isn't always thrilled to see someone else in its favorite dresses.

Last month the Independent reported that British designer Matthew Williamson had provoked the ire of some Ethiopians with two Spring 2008 designs that resemble traditional dresses.  In the words of Abdurazak Omer of the Intellectual Property Office in Addis Ababa:

We are very unhappy with the actions of Mr. Williamson.  These are the dresses of our mothers and grandmothers. They symbolise our identity, faith and national pride. Nobody has the right to claim these designs as their own.

Photos via Sassybella.com

Williamson, whose colorful designs appear under the Pucci label as well as his own, has frequently turned to India and more recently to Native American designs in his collections.  In response to the controversy, a spokeperson noted:

In presenting his spring/summer 2008 collection Matthew Williamson strived to gain recognition and admiration for not only the traditional dress of the Ethiopian people, but also other African communities whose beautiful traditional techniques are also evident in the show. 

I've argued elsewhere -- and as recently as yesterday at a panel chaired by Prof. Sonia Kayal at the AALS annual conference -- that attribution to a source community is often sufficient to avoid or at least mitigate charges of unauthorized cultural appropriation.  Williamson's statement to the press by proxy is certainly a step in the right direction.  But such acknowlegement is usually more effective if it occurs before the fact, not after.  (In fairness to Williamson, I haven't read his program notes -- but then again, in the excitement over an opening act by Prince, most of the attendees at the show probably didn't read them either.) 

Of course, it never hurts to ensure in advance that specific allusion to traditional designs won't be offensive.   Remember Karl Lagerfeld's inadvertent embroidery of verses from the Koran on a Chanel bustier?  Or Jean-Paul Gaultier's Hasidic-inspired collection?  Not good for public relations in either case. 

Perhaps Williamson will adopt the suggestion of the Independent reporter and show his African-inspired designs on African models next time.  Or even donate a portion of his profits to Ethiopian designers, an idea that would no doubt please Prof. K.J. Greene, who has argued for reparations to correct past instances of uncompensated copying of African-American music. 

But one thing's for sure:  Williamson won't be seeking protection for his own designs from the Ethiopian Intellectual Property Office any time soon.

December 23, 2007

Irish Eyes Aren't Smiling

A striped shirt made history last week.

Of course, it wasn't just any striped shirt.  It was a shirt by British designer Karen Millen that, along with 2 other items, became the first article of clothing subject to a decision regarding infringement under the E.U.'s 2002 unregistered design right regulation.  Irish High Court Justice Mary Finlay Geoghegan found that the defendant, Dunnes Stores, had copied the 3 garments and rejected the defense's argument that the KM shirts and sweater lacked "individual character" and failed "to produce on the informed user a different overall impression" from other similar garments.  In reaching her decision, the judge said that the court would take into account the color, texture, and material used in the designs.

Karen Millen-Dunnes Stores shirt comparison 

Despite the significance of the case and the E.U.'s treatment of fashion as equivalent to other objects of design, the press couldn't resist making light of the subject matter or the attorneys arguing over it, including former Irish Justice Minister Michael McDowell for the plaintiff.  An article in the Sunday Independent shortly after the trial noted:

Rarely have the fripperies of fashion been dissected with such gravitas in an Irish courtroom. Over four days last week, the middle-aged [male] barristers at times struggled to suppress their chuckles as they crossed swords over ribbed stitching, layered borders, sweetheart necklines and bust-hugging fibres. They did so in a court room littered with copies of Marie Claire magazine, door stopper editions of Vogue and expensive handbags.

And when the question of whether the KM designs were in fact sufficiently new to deserve protection arose, the judge had to remind the parties that the question before the court was not whether "hypothetical husbands" would recognize the difference. 

Still, in a battle between stuffed shirts, the new striped shirt carried the day -- at least in Ms. Justice Finlay Geoghehan's courtroom.

December 18, 2007

Counterfeit TradeMarx

Venezuelan President Hugo Chavez may be a committed socialist, but at least one member of his cabinet appears to be faking it.  Check out the stammered response of Pedro Carreno, identified as both Justice Minister and Interior Minister, when asked by a journalist whether it isn't contradictory to criticize capitalism while wearing a Louis Vuitton tie and Gucci shoes.

 

¡Viva la Revolución!

December 11, 2007

Cops and Robbers

Attention copyists:  You may find a warm welcome in the U.K. -- or in Kent, at least, where the good cops are also bad cops.  At least allegedly. 

Oh Baby London onesie - £21IP Kat reports that designer Hannah McHalick of Oh Baby London is suing the Kent Police over their use of the slogan "I've Been Inside for 9 Months" on baby clothes.  The police have responded that their product line is different because they use the word "I've" in addition to Ms. McHalick's claimed phrase.

While the Metro news article on the case didn't identify Oh Baby London's IP argument with any specificity, Jeremy Phillips at IP Kat doubts that the phrase in question would qualify as an original literary work under U.K. copyright law.  He also questions its use as a trademark.

But what if the case were considered under U.S. law?  While it's axiomatic that words and commonplace short phrases cannot be copyrighted, courts have occasionally found infringement in cases alleging reproduction of as little as a sentence fragment.  For example, there's Andreas v. Volkswagen of America, Inc., 336 F.3d 789 (8th Cir. 2003),  in which the voiceover of an Audi commercial, "I think I just had a wake-up call and it was disguised as a car and it was screaming at me not to get too comfortable and fall asleep and miss my life," was found to infringe the work of an artist who accompanied his drawing with the words, "Most people don't know that there are angels whose only job is to make sure you don't get too comfortable & fall asleep & miss your life."  So the Oh Baby London claim wouldn't necessarily be dismissed immediately, even if the majority of cases involving short phrases find that they are not in fact sufficiently creative to be subject to copyright protection.

Kent Police onesie £12And what about trademark, the natural IP home for short phrases?  I have to agree with Jeremy that there's some question as to whether Oh Baby London's "Been Inside for 9 Months" actually indicates to consumers the origin of the clothing, and thus qualifies for trademark protection.  Not every cute, marketable phrase is a trademark, in the U.S. or the U.K.  And yes, the phrase is descriptive -- or misdescriptive -- but of the baby, not the clothing.  Of course, all this might still leave Ms. McHalick with an unfair competition claim in tort law. 

And one other thing:  If Ms. McHalick is indeed successful in claiming protection for her clever turn of phrase, U.S. courts would be no more mollified than their U.K. counterparts at the Kent Police's addition of an "I've."

Whatever the outcome of the lawsuit, IP Kat is quite right that the cops in Kent need a bit of time on the inside...of an up-to-date legal hornbook.   

November 19, 2007

Oops! She Did It Again: Britney Spears' Flying Fake

What cosmic counterfeiting conspiracy has compelled mention of Britney on this page twice in a month?  It's a vision best avoided -- as is Britney Spears' 2005 video "Do Something," which features the singer and friends in a flying pink Hummer upholstered in Louis Vuitton Murakami cherry blossoms.  Counterfeit, of course.

A French court has levied a fine of 80,000 euros (nearly USD $120,000) against Sony BMG and its subsidiary Zomba Label Group, as well as MTV Online, which displayed the clip on its website.  In addition, the court ordered the video removed from distribution, including via the internet, with additional fines of 1,000 euros per day until the companies do so. 

At that rate, Britney could've hired Takashi Murakami to draw the flowers personally....

November 02, 2007

Smuggling Vuitton Fakes

October 24, 2007

ACTA Up!

The World Intellectual Property Organization is in a furor over a scandal involving Director General Kamil Idris' alleged misrepresentation of his age in official documents and subsequent calls for him to step down.

The World Trade Organization is stuck in the Doha round of trade negotiations.  Still. 

But that hasn't kept a group of major global trading partners, including the US, the EU, Canada, Japan, Korea, Mexico, New Zealand, and Switzerland, from announcing plans to create an Anti-Counterfeiting Trade Agreement.  ACTA will focus on three areas:  1) international cooperation, (2) enforcement practices, and (3) a strong legal framework for IP enforcement. 

Reading between the lines?  Call it the Anti-China Trade Alliance.

For more information and commentary, here are the US press release, the EU press release, a skeptical opponent, and a pessimistic sympathizer.   

October 11, 2007

Babes in Toyland

Barbie is pushing 50 -- and she's not aging gracefully.  Plagued by reports of falling sales and girls who would rather mutilate their dolls than play with them, Barbie has also felt compelled to pursue legal action against the younger, hotter Bratz girls. 

Now the pneumatic blonde has another competitor -- but this time the doll's legendary curves are decidedly not on display.  Indonesian engineer and businesswoman Sukmawati Suryaman has created the modestly dressed and veiled Salma, advertised as the "Muslim Barbie," as a cultural alternative to the original.  Interestingly, the made-in-China newcomer not only bears a strong physical resemblence to her Western foremother, but she also appears to have followed Barbie's makeup tips. 

Check out the BBC report on Salma...

 

...and then start placing bets on how long it will take Mattel to send a cease & desist letter. 

October 05, 2007

Heart Trouble

Intellectual property is global.  Intellectual property law, however, is national -- which may cause difficulties for New York State, a determined defender of its "I Love NY" U.S. trademark, with respect to this version from Nancy, France:

I HEART NancY

It's a toss-up whether the original trademark owner will be more offended by Nancy's use of the mark or by the fact that the interloper -- like many people -- apparently believes that the slogan refers to New York City rather than the whole state.  At the moment, however, New York definitely does not "heart" Nancy. 

Via AdsoftheWorld.com

October 02, 2007

Mascara Madness

While many consumer protection organizations are concerned about the lead content of toys manufactured in China or toothpaste sweetened with antifreeze, Spanish consumer advocates are apparently focused on ... the authenticity of Penelope Cruz's eyelashes

In response, L'Oreal added a disclaimer to TV ads featuring Cruz and her fluttering fakes.  Parody ensued:

 

And what's the legal penalty for such blatant public deception?  Fifty lashes, naturally.

September 20, 2007

Zadig & Voltaire Tee'd Off at Gap

Within global fashion community, the U.S. is notorious for permitting design piracy.  Has one of America's most recognizable brands now attempted a daring raid in foreign waters?

French label Zadig & Voltaire has sued Gap, Inc., for allegedly copying Z&V's "Tunisien" T-shirt -- and selling it in Z&V's home market, where imitation is actionable.  The French style costs 79 euros (approx. USD $110) and the American version 29 euros (approx. USD $40). 

While a number of sources have reported the dispute, perhaps the most interesting is this one.  It reads like an internal memo from Gap, with headings including "situation," "objectives," "audience," and "tactics."  The "strategy" is to argue that "[n]ot once has Gap been in a legal copyright situation like this and we will use that in the press."  Hmmm.  The "timetable" is 3 days -- so look for a publicity blitz any minute now.

Pirate ship or battleship, has Gap sprung a leak? 

Many thanks to both the gracious Frederic Glaize of Le petit Musee des Marques and fashionable law student C. Pearson McGee for alerting me to the case! 

July 19, 2007

It's Not Easy Being Green

Eco-trendy shoppers in New York and surrounding states lined up in the rain outside Whole Foods stores yesterday for a chance to buy Anya Hindmarch's "I'm Not a Plastic Bag" bags (previously discussed here) -- and yes, carry them home in plastic bags. 

At the same time, the Times of London reports that shoppers in China, where authorities banned sales of the bags after several women in Hong Kong were trampled in the rush to buy them last week, were turning to a more immediate option -- counterfeits. 

Of course, there's a catch:  at the equivalent of £9, the fake bags are more expensive than the £5 originals. 

Anya Hindmarch original

July 14, 2007

Club Thread

Less than a week after Rob Walker featured Threadless, the wiki of T-shirt companies, in his brilliant "Consumed" column, You Thought We Wouldn't Notice warns aspiring designers of a downside:  the online design submissions may be mined by copyists worldwide as a source of free graphics.  Below, the original T-shirt design (left) alongside a Viennese club flyer:

Threadless club mix

Urheberrechtsverletzung, anyone?

July 10, 2007

Don't Be a Knock-Off Nigel

Is laughter a useful counterpart to law in effecting social change?  The UK Industry Trust for Intellectual Property Awareness thinks so -- and has created a hapless character named "Knock-off Nigel" to be the butt of its campaign. 

Here's one fairly traditional public service announcement (all fun & games 'til the lesson at the end)featuring the "shabby, pub-going rogue" and the sale of fake DVDs: 

And a more lighthearted musical interlude at the pub, in which an abashed Nigel is accused of everything from buying knockoff DVDs to giving his girlfriend a watch he found on the street.  Apparently Nigel is not just fond of fakes but a real cheapskate, the kind who never buys a round of drinks, etc. 

With Nigel-related quips on everything from commercials to beer coasters, the Industry Trust is hoping that he will become a stock character and that social stigma will attach to his piracy-promoting activities.  Of course, not everyone approves.

UPDATE: And still more from Madisonian.

June 21, 2007

Leading by Example

Kate HoeyLast year when the Daily Telegraph described British MP Kate Hoey as wearing a Gucci watch, a string of pearls, and a jacket trimmed in faux fur, the independent-minded Labour politician and champion of fox hunting was quick to demand a correction.  The fur, apparently, was real; it was the Gucci that was a fake.

Retired British defense analyst W.F. Hogarth (no, not that William Hogarth) was not particularly amused.  Taking a break from his more common focus on counter-insurgency and threats in the Middle East, he recently trained his formidable analytical skills on the question of counterfeits.  After creating a taxonomy that divides "cheap and nasty" fakes from higher quality "replicas," and further subdividing replicas into acknowledged fakes and intentionally misleading forgeries, Hogarth blasted willing buyers for their financial support of criminal activities that include child labor, laundering of drug money, and terrorism.  (Come to think of it, the counterfeiting issue really isn't that far from his usual beat.) 

Perhaps the most interesting element of Hogarth's analysis is his challenge to luxury brands, whose own celebrity-driven advertising creates demand for counterfeits as well as for the real thing -- among politicians and ordinary folk alike. 

There may be no simple solution to this conundrum, but at least Hogarth is watching the watchmakers.  And the lawmakers.

May 15, 2007

Knowledge Economy

Are Chinese counterfeiters hacking the computers of European designers in search of the next "it" bag?

The most recent edition of Gnosis, a publication of the Italian intelligence agency SISDe, warns that the "yellow peril" is spreading via the internet -- and that industrial espionage is one of its dangers.  The article quotes Roberto Preatoni, the founder of an international computer security company, as saying, "At one time the Chinese came to the West to take pictures of the windows of shoe stores or fashion boutiques in order to copy the products.  Today, instead, they steal designs directly from the manufacturers' servers and are thus in a position to introduce a counterfeit product into the marketplace even before the original has been commercialized."   

According to the Washington Times, a spokesperson at the Chinese embassy in Washington, DC, dismissed the report. 

Then again, perhaps a little knowledge is a dangerous thing.   

May 14, 2007

Art and Artifice

Against a backdrop of global concern over counterfeit goods and artistic frauds, Forged Realities, a recent art show in Beijing, took on the question of real v. fake.  Ten artists, including Stephanie Syjuco of Anti-Factory and the previously featured Counterfeit Crochet Project, contributed works in the categories of fake goods, fake narrative, and fake artworld (in contemporary China), under the curatorial direction of Pauline J. Yao.  

To open the exhibition catalog, Yao offers the following quotes:

Truth becomes fiction when the fiction's true;

Real becomes not-real when the unreal's real.

--Cao Xueqin

Starting out from the demand of "forgery in place of original," passing through the contemplation of "forgery or original," and even surpassing the dialectics of "forgery and original at the same time," we finally arrive at the viewpoint of "forgery as original," which at the moment offers perhaps the greatest perspectives:  In an age when the confidence in authenticity and trust has been shattered, to direct a beam of light at the twilight concealing the distinction between forgery and original, with a painful brightness that provokes clarification and reaches the most secret corners of personal existence, with a brightness to which we cannot close our eyes, this is perhaps the most that art can do. 

--Janos Gyorgy Szilagi

Just the thing for a Monday morning meditation.

Crochet Bag Project displayed in Forged Realities

 

April 19, 2007

Gallic Court Galled by Galliano

John GallianoJohn Galliano, chief designer for Dior as well as for his own label, is an inspired sculptor of textiles -- but his creativity in the photographic realm has been called into question.

A French court ruled that a Galliano ad campaign copied the work of well-known US photographer William Klein, and the judge ordered the designer to pay 200,000 euros (approx. USD $275,000) in compensation. 

Galliano's lawyer contends that the ads, shot by Julien d'Ys and featuring model Agyness Deyn, did not resemble images from Klein's original work and thus should not be considered copies.  The appearance of the ads, however, apparently mimicked Klein's "painted contacts" technique, in which black-and-white photo contact sheets are blown up and marked with enamel paint in primary colors to highlight the images.  Klein developed the style over 15 years ago, and his work was the subject of a 2005 retrospective at the Pompidou Center in Paris, where both parties live and work. 

Both sides are likely to appeal.  

Would a similar ruling result under US law?  Not exactly, since 25% of the award was reportedly for damages to the reputation of Klein's work, a moral rights claim that would have little resonance in American jurisprudence.  Copying the recognized style of another artist, however, recalls the case of Steinberg v. Columbia Pictures, 663 F. Supp. 796 (S.D.N.Y 1987), in which a federal district court found that a movie poster imitating the style (and some of the substance) of a well-known New Yorker magazine cover was an infringement of copyright.  Although the Galliano ads are not alleged to have reproduced specific scenes from Klein's work, the photographer's style alone is highly recognizable.  Even if an unsympathetic court might dismiss the technique as an unprotectable "idea" under copyright, a colorable trade dress or unfair competition claim might stand.  After all, Klein learned of the ads when a friend saw them and asked why he'd (apparently) done such poor work for Galliano. 

The moral of the story:  Unless you're looking for a fight, don't advertise original work with knockoff images.  At least not in French Vogue. 

A William Klein original

Thanks to Nancy Prager, Esq., for the tip -- and don't forget to check out her blog!

UPDATE:  Le Monde's detailed report of the case, courtesy of Alain Coblence.  Merci!

April 12, 2007

Counterfeit Coffee Break 4

Vacationing in Germany anytime soon?  If so, take a break from cathedrals, museums, and beer to visit the Plagiarius Museum outside Cologne, an entire institution dedicated to "innovation contra imitation." 

Among the institution's programs are the annual Plagiarius Awards, given to blatant copies of designed objects, frequently German originals.  The museum reports that some companies whose knockoffs have received the dubious honor have been deterrerd from future production or embarrassed into seeking licensing agreements.  The moral (because German folktales always have a moral):  Even if you can't bring a lawsuit, you can always name 'em and shame 'em -- especially online.

Among the 2007 award "winners" is the perfect pot for your counterfeit coffee break, originally by alfi and knocked off by the He Shan Jia Hui Vaccuum Flask & Vessel Co.:

And if you plan to do a bit of shopping during your visit, perhaps the museum will offer an original Reisenthel Accessories basket knocked off by, well, everyone (thus prompting the new Hyena Prize, presumably for copyists who hunt in packs):

Counterfeit confession:  When I first ran across a report of this museum, I thought it must be an April Fool's joke.  (Context is everything.)  Many thanks to my fabulous and fashionable student Suzana Carlos for setting the record straight!

Counterfeit Coffee Break 4

Vacationing in Germany anytime soon?  If so, take a break from cathedrals, museums, and beer to visit the Plagiarius Museum outside Cologne, an entire institution dedicated to "innovation contra imitation." 

Among the institution's programs are the annual Plagiarius Awards, given to blatant copies of designed objects, frequently German originals.  The museum reports that some companies whose knockoffs have received the dubious honor have been deterrerd from future production or embarrassed into seeking licensing agreements.  The moral (because German folktales always have a moral):  Even if you can't bring a lawsuit, you can always name 'em and shame 'em -- especially online.

Among the 2007 award "winners" is the perfect pot for your counterfeit coffee break, originally by alfi and knocked off by the He Shan Jia Hui Vaccuum Flask & Vessel Co.:

And if you plan to do a bit of shopping during your visit, perhaps the museum will offer an original Reisenthel Accessories basket knocked off by, well, everyone (thus prompting the new Hyena Prize, presumably for copyists who hunt in packs):

Counterfeit confession:  When I first ran across a report of this museum, I thought it must be an April Fool's joke.  (Context is everything.)  Many thanks to my fabulous and fashionable student Suzana Carlos for setting the record straight!

April 11, 2007

Geneva Convention, Anyone?

As even the most staid news outlets have noted, Iran didn't score any style points with the ill-fitting grey suits issued to the released British soldiers last week. 

Now it turns out that Iran wasn't particularly attuned to trademark law either.  The shirts given to the crew were  -- you guessed it -- fake.  Counterfeit Hugo Boss to be exact, and not exactly up to the sartorial standards of Her Majesty's Royal Navy.  In the words of crewman Arthur Batchelor, "I could pick up a better outfit at a jumble sale."

Iran isn't yet  a member of the WTO, but it has joined several international intellectual property conventions, including the Madrid Agreement Concerning the International Registration of Marks, the Madrid Protocol, and the Paris Convention for the Protection of Industrial Property.  I don't know whether Hugo Boss has ever availed itself of trademark registration in Iran, but perhaps unfair competition law would nevertheless come into play.

And apart from IP issues, there surely must be a human rights violation here somewhere.

March 20, 2007

Euro Trend Report

Anticounterfeiting efforts are on the agenda in the European Parliament today, with a scheduled commitee vote on creating an EU-wide criminal law to combat the flood of fakes.  Debate centers on the scope of the law, which could either focus exclusively on large-scale copyists or target consumers as well, as both France and Italy have. 

So if you're planning a shopping trip, think twice before buying a replica of that Bulgarian bag or Slovenian CD you've been coveting.  Like your weight in kilos instead of pounds, fines calculated in euros rather than US dollars only seem lower.

March 17, 2007

The Dictates of Fashion

If one must suffer for fashion, then designer Rabia Ben Barka has certainly paid her dues. 

Born to a wealthy Libyan family, she lost both fortune and homeland when Muammar el-Qaddafi took over and nationalized her family's textile mills and other assets.  Although she remained in Europe and worked for other designers, she was unable to return home and develop her vision of combining North African and Western styles -- until the dictator's daughter took a fancy to her designs.  From daughter to mother and finally father, Rabia now enjoys an elite clientle as well as the benefits (and burdens) of success:

Though her work was a shock to some Libyan traditionalists, over the years, she said, she has won a following here, dressing foreign diplomats and their spouses, staging fashion shows for visiting delegations and, of course, continuing her work for the first family. 

Now, she said, she grapples with another problem:  bootleggers copying her designs.

Then again, at least "Brother Leader" hasn't nationalized them.

February 18, 2007

Happy Year of the Pig!

Chinese astrology predicts that new little piglets born during the upcoming year are destined to be lucky, but what do the stars foretell on the fake front?  Will China -- the United States' public enemy #1 with respect to counterfeit goods -- be plump and content, or greedy and lazy?  Either way, the U.S. Trade Representative will be watching, having recently postponed a threatened WTO action regarding China's intellectual property rights enforcement.  In the meantime, remember to check out the U.S. Department of Commerce webinar series on IPRs in China, as well as must-read blog IP Dragon.

And my lunar new year's gift to you?  A photographic reprise -- which turns out to involve allegations of a copying controversy of its own.

January 03, 2007

Counterfeit Cooperation

Ever wonder how hundreds of street vendors around the world seem to be selling the same merchandise displayed on the same white sheets at the same time for the same prices? 

In an article on Senegalese immigrants to Italy, the Economist pulls back the veil on an organized expatriate community of counterfeit handbag salesmen.  Many are members of the Muslim Mouride movement, and they support both one another and their families back home:   

On the street, [Alioune] Ka greets fellow Mourides, who form cheerful, close-knit sub-groups.  Sellers of bags and belts, mostly made in China, gather to hone their techniques for dodging the police....

Once a week most Mourides in Rome gather to pray, socialise and see who needs help.

In other words, they're the perfect self-reliant, hardworking, future citizens -- with an illegal twist.

Street vendor in Venice

November 26, 2006

Counterfeits and Counterterrorism

Military activities are big business -- just ask the nice folks at Halliburton.  Tax dollars (yours and mine, around the world) fund the various government-sanctioned versions of warfare.  But who's paying for the rest?  With Leonardo DiCaprio starring in the upcoming film Blood Diamond, we're certain to hear a great deal about one source of funding for armed conflict.  Today's New York Times, in a front-page article on the Iraqi insurgency, discusses other means of financing violence:

The insurgency in Iraq is now self-sustaining financially, raising tens of millions of dollars a year from oil smuggling, kidnapping, counterfeiting, connivance by corrupt Islamic charities and other crimes that the Iraqi government and its American patrons have been largely unable to prevent, a classified United States government report has concluded [emphasis added].

Counterfeit Chic has already discussed the alleged link between counterfeiting and terrorism here, here, and here.  It's almost a cliche that profits from an illicit market in anything (drugs, human beings, handbags) can be used to fund other illegal activities, although inquiring minds prefer concrete evidence of a connection.

Speaking of evidence and connections, why exactly is it that the paper of record is publishing the contents of a confidential report, obtained from "American officials"?  In a troubled administration, is "counterfeit classified" the new "top secret"? 

October 13, 2006

Core Differences

Is the new Apple Computer flagship on 5th Avenue in New York a knockoff of the Ka'ba in Mecca?  And should Muslims be offended by the resemblance? 

Claims of cultural misappropriation are difficult enough to analyze when the subject matter in question -- dress, dance, cuisine, music, traditional medicine, architechture, etc. -- has clearly been copied.  But a cube?  Even a freestanding cube in the middle of a plaza?  Even when another freestanding cube in the middle of another plaza is an iconic image to much of the world's population?  Tough call. 

But "Apple Mecca" or not, I think I may stick with Windows shopping until the matter is resolved.

Hat tip:  Trexfiles

October 11, 2006

Curated Counterfeits

Counterfeit Chic has previously discussed the reluctance of most museums to display forgeries, but the Museum of Counterfeit Goods is a notable exception to the rule.  This permanent collection, located at the Bangkok office of the Tilleke & Gibbins law firm, displays not only a range of fashion items but also food products, electronics, toiletries, pharmaceuticals, and even automobile parts alongside the fake versions.  Open by appointment -- and no, there's no gift shop. 

 

October 07, 2006

Passing the Smell Test

While Dutch and French courts have flirted with the idea of copyrighting fragrances (see here and here), England is having none of it.  In a decision handed down Wednesday, a London court confirmed, "It is common ground that it is not an infringement of copyright in the United Kingdom to manufacture a perfume that mimics the smell of a successful fragrance."  (A scent can in theory, however, be protected as a trademark under U.K. law.)

Cosmetics giant L'Oreal nevertheless succeeded in some if its trademark infringement claims on the basis of the smell-alikes' packaging and use of the plaintiffs' trademarks to compare the original and knockoff products.  Bellure NV, the first named defendant in the case, informed the court that it has ceased trading after losing similar cases elsewhere. 

Olfactory creativity, it seems, is best protected by its visual and verbal avatars.

August 19, 2006

From Russia with Love

A warm welcome to Counterfeit Chic's Russian readers, and many thanks to Gazeta.ru for the nice mention! 

An article on "Fashionable Blogomania" describes some favorite fashion websites (you'll recognize some familiar names in Roman characters!), and concludes with an interesting observation about blogging and its relationship to the way fashion itself exists as an ongoing conversation between the street and the runway (translation courtesy of my multitalented and most esteemed colleague, spouse, and web designer):

Why do they do it?  All bloggers have the same goal:  to express their own opinion.  An opinion, even of a critic who is not a professional, is significant -- a consumer votes with her pocketbook.  In the end, style is created for the consumer, and not for advertising pages in thick magazines.  The street reworks and adapts ideas and then, altered beyond recognition, they again return to the runway to inspire a new cycle of changes. 

A most democratic sentiment for a stylish, post-Soviet fashion scene

August 16, 2006

Pssst! Want to Buy a Watch?

If you buy a "Swiss" watch on the street, chances are it's either a stolen design or stolen goods.  But would you be equally suspicious of a watch offered for sale at a lavish private party?

According to a link from Dram Man, an information-packed blog by an American working in intellectual property law in South Korea, another American expat has allegedly been distributing his "Swiss" watches through just such exclusive channels.  The Korean police, however, say that the watches distributed by Lee Dong-Jin (a.k.a. Phillip Lee, d.b.a. Vincent & Co.) were actually manufactured in Korea using Chinese components. 

To satisfy the cautious consumer, the watches were apparently accompanied by fake certificates of quality and authenticity; some were even sent on a round-trip journey to Switzerland in order to generate import certificates.  Lee, who denies the allegations, traded on the "exclusivity" of the watches, even putting customers on waiting lists for the "handmade" items. 

Interestingly, the watches were not the usual copies of well-known brands, but were presented instead as something much more rare and known only to the initiated few -- including Queen Elizabeth II, Princess Diana, and Princess Grace of Monaco.  In other words, Lee is no ordinary trademark counterfeiter.  Instead, he is accused of inventing a little-known luxury brand and fraudulently deceiving customers as to the geographical origin of the goods.

The watches may not be authentic, but Lee's grasp of consumer psychology certainly is. 

P.S.  Dram Man has additional information on the apparent scam here (with another interesting link). 

August 15, 2006

Selling "La Dolce Vita"

Today's WWD reports that after several difficult years, the Italian fashion industry is seeing a financial turnaround.  According to Mario Boselli, president of the Camera Nazionale della Moda Italiana (Italy's CFDA):

Italian designers know that it is not enough to sell fashion and that we must export a way of life -- a concept no one can copy.

And some items may even be wash and wear.

July 26, 2006

Tourist Trap

Click here for larger image

In Italy, unlike the U.S., a purchaser of counterfeit goods may be subject to a fine.  Above, a sign in Venice warns unsuspecting tourists of the hidden costs of bargain bags.

July 13, 2006

Scents and Sensibility

Last month, Counterfeit Chic noted that cases in both France and the Netherlands had extended intellectual property protection to perfume, although the issue ultimately remained unresolved in France. 

In today's New York Times, Elaine Sciolino further explores two conflicting French decisions -- is perfume "a work of the mind" or not?  Is the creation a a new fragrance the result of a "simple implementation of expertise" or something more poetic?

"It's an extremely open and controversial question," said Catherine Verneret, the lawyer for Bellure, the company that lost in the L'Oreal case.  "Perfume is not only a simple aesthetic creation.  It is also an assemblage of molecules, a technical solution to a technical problem."

***

"When I write a perfume, the scents are the words," [perfumer Jean-Claude Ellena] said.  "And with these words I construct a story.  There is breathing, and there are transitions, just as in sentences.  Perfume, first of all, is a mental construction."

In reading the article, I wondered whether the courts in the divergent French decisions had been influenced as much by the facts and circumstances of the cases as by the copyright principle.  In the case won by cosmetics giant L'Oreal, the defendant was a perfume knockoff artist.  In the later case, a perfumer who had won an earlier case against her employer for wrongful dismissal unsuccessfully attempted to claim royalties for Dior's Dune, which she claims to have created. 

Do these cases represent a jurisprudential inquiry into whether an original fragrance may be subject to copyright, or a more instrumentalist protection of the industry?  Perhaps both, but the result so far is a lingering air of confusion. 

June 21, 2006

Allied Powers

Here's more on the new US-EU joint effort to combat counterfeiting, in the form of a WSJ editorial collectively authored by the US Secretary of Commerce, the European Commission Vice President for Enterprise and Industry, the EU Trade Commissioner, and the USTR. 

Rhetorically, the focus is on not-so-chic counterfeiting:

Twenty years ago, counterfeiting might have been regarded as a problem chiefly for the makers of expensive handbags.  In the 1980s, 70% of firms affected by counterfeiting were in the luxury sector.  But in 2004, more than 4.4 million items of fake foodstuffs and drinks were seized at EU borders, an increase of 196% over the previous year.  In the U.S., seizures of counterfeit computers and hardware tripled from 2004 to 2005.  There are also fake electrical appliances, car parts adn toys.  Even airplane parts are being pirated:  The Concorde crash of 2000 appears to have  been caused by a counterfeit part that had fallen off another aircraft. 

Good point.  The next time I buy an airplane, I'm going for the real deal. 

June 15, 2006

Art Imitates Art

Sometimes copyists adorn our bodies, other times they decorate our walls.

The remarkable Kathleen Fasanella of Fashion Incubator sent the following item from the Economist:

A golden figure in Tokyo’s art world has been stripped of one of Japan’s most prestigious prizes. Yoshihiko Wada, a 66-year-old artist, had staged an acclaimed exhibition of oil paintings in Tokyo last year and this spring won Japan's Art Encouragement Prize for his work. But after two months of basking in considerable glory, Mr Wada surrendered the prize in May amid an investigation by Japan’s Agency for Cultural Affairs that his paintings, which depict urban Italian life, might plagiarise the work of Alberto Sughi, an Italian artist.

The panel that awards the prize reconvened to decide whether Mr Wada’s paintings too closely resembled those of Mr Sughi. After just two hours of deliberations, the panel concluded that the likeness was too strong to be ignored. Mr Wada denied plagiarism but returned the prize “to protect its honour”.

According to the BBC, Wada claimed that the two artists had inspired each other.  Sughi, however, said that he thought Wada, who visited Sughi's studio several times and took photos, was a tourist.

Compare Sughi's "Piano Bar, Italia" (1996), top, with Wada's "Muso" (Reverie) (2004). 

Alberto Sughi, Piano Bar, Italia (1996)

Yoshihiko Wada, Muso (Reverie) (2004)

I'm no expert, but it looks like Wada's got the blues.  (Yes, groan.)

May 31, 2006

Buy an Original, Win a Prize

We interrupt our series of jewelry posts at Counterfeit Chic to bring you this newsflash:

Geoffrey A. Fowler at the Wall Street Journal reports today that Disney is enlisting Chinese consumers "to help it weed out counterfeit products" -- by offering prizes to those who buy the real thing.  The genuine products include red hologram stickers, which customers can peel off, attach to a form, and send in to win prizes ranging from DVDs to trips to Disneyland (in Hong Kong).  Apparently, "[s]ome customers have even called the company to alert it to retailers selling [presumably fake] products without the stickers...."  At the same time, Disney is building a database of consumers lured by the promotion.

Love the technique or hate it, this may be Disney's most enticing vision since Walt's (allegedly) China white-induced dreams.

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 25, 2006

Denim Detective

Barbara KolsunIn today's WWD, Liza Casabona and Ross Tucker report on the shady world of counterfeit premium denim, with a feature on Seven for All Mankind's general counsel and anticounterfeiting crusader Barbara Kolsun.

Barbara, known as a "mentor in the market," has been successful in building relationships among the legal officers of various luxury brands and bringing them together to take collective action against copyists: 

"We're competitors in the marketplace, but compatriots in the fight against counterfeiting," Kolsun said. 

Interestingly, the general counsel of another company mentioned Barbara to Counterfeit Chic recently (with great admiration), and suggested that Barbara was one of the few industry lawyers willing to talk on the record about her company's battles against counterfeiters.  Most luxury brands, apparently, would rather that any press they receive be focused on more positive issues.  It's one thing to receive attention for the new "it" bag or philanthropic campaign, but quite another to be associated with fake goods and police raids. 

Still, Seven for All Mankind's cooperative approach appears to be having an effect -- and kudos to Barbara for making lawyers (not to mention multiple government agencies) play nicely together.

BTW, how do you tell a counterfeit pair of Sevens?  Well, if you're buying them from a table set up next to your subway stop, there's a good chance that they're fake.  WWD offers list of additional tips as well:

  1. Tapered stitching on both interior and exterior edges of the pocket?  Fake.  The real deal has tapered stitching only on the inside edge and parallel seams on the outside edge.
  2. Missing or generic rivets?  Fake -- Seven rivets (and other hardware) include the company name.
  3. Loose threads and other poor quality construction inside?  Probably fake.
  4. Logo on inside of waistband in wrong font?  Fake.
  5. "Made in China"?  Definitely fake -- Sevens are only produced in the U.S.
  6. Exterior hangtag with different paper quality, font, or twine attachment?  Fake.
  7. Zipper missing name-brand YKK logo?  Fake.

Some of these differences are subtle, but the true denim afficionado will go to great lengths to find the perfect jeans.  Counterfeit Chic's advice?  If you're hoping to score a bargain but unsure whether you're simply getting ripped off instead, bring along a real pair of your preferred brand for comparison -- and if you're still in doubt, CYA elsewhere.

Hat tip to Julie of Almost Girl and Coutorture  and Fashion Wire Daily (and tomorrow the world!).

May 21, 2006

Iranian Fashion Police

Reports last week that a proposed Iranian law would require religious minorities to wear identifying badges reminiscent of the yellow stars worn by Jews under the Nazi regime were apparently false.

The actual draft legislation, however, is not exactly a cause for celebration.  Conservative members of parliament, seeking to halt the influence of Western fashion on urban Iranian women, have turned to cultural protectionism.  According to an Associated Press translation:

"In order to preserve and strengthen Iranian-Islamic culture and identity, consolidate and promote national clothing designs and guide the manufacturing and marketing of clothes, on the basis of domestic forms and designs, as well as to encourage the public to refrain from choosing and spending on foreign designs not appropriate to the Iranian culture and identity," the Culture and Islamic Guidance Ministry will form a committee made up of representatives from various ministries, the state media and the parliament culture committee to follow through this law.

In other words, no more headscarves slipping back to reveal -- gasp! -- hair; no more ankle-baring trousers, let alone jeans; no more coats tailored to suggest that somewhere underneath all that fabric might be an actual human form. 

Promoting local culture is a good thing, as is encouraging local industry.  In light of the existing restrictive dress code for women, however, these paeans to traditional culture and to emerging designers seem disingenuous.  Iranian consumers aren't buying the story, either:

In the modern metropolis of Tehran, many women were also on the defensive.

"They sugar-coat it at first, but they could move on to make everyone wear a certain outfit," said Manijeh Afzali, a 47-year-old resident of the city spotted while out shopping for clothes.

Her 20-year-old daughter was equally cynical: "I'm not sure about the patterns they are going to put out. They will probably be tacky and like villagers' clothes," she said.

There are plenty of Western trends that, as an aesthetic matter, probably shouldn't be copied.  (Legwarmers outside of a dance studio, etc.?  Why exactly would anyone pursue the illusion of having calves wider than her thighs?)  On the other hand, there are some appealing Middle Eastern uses of color and pattern.

But in this case, Iran's proposed deployment of the fashion police sounds more like an effort to silence women's freedom of expression -- a right that should always be in style.

May 17, 2006

"Real" Espadrilles?

For several summers the humble peasant shoe known as the espadrille has been adorning the feet of the fashion flock, initially as a traditional flat shoe and more recently in ever higher, more fanciful, and more expensive versions. 

But at what point is an espadrille no longer an espadrille?

To start by giving credit where it's due, espadrilles apparently go back several centuries and are associated with the south of France and with Spain, especially Catalonia.  In their most basic form, they consist of woven rope soles sewn to a canvas upper.  Today many have rubber bottoms attached to the soles, but true purists eschew such modern innovations.

So what if we embellish and reshape them?

Cross them with flip-flops?

Sam & Libby espadrille

Turn the heel into a wedge?

Kors espadrille

Dip the whole thing into a turquoise dye bath?

Dior espadrille

Raise them to sky-high levels and invite cobbler extraordinaire Christian Louboutin to personalize them?

It seems that authentic peasant fashion, like cucina povera, has come a long way from its humble roots.  But the good news for longtime espadrille makers is that traditional or "artisanal" versions can cost more than five times as much as modernized copies -- though still orders of magnitude less than the "designer" versions.

So will whoever is wearing "real" espadrilles please stand up?  Or better yet, walk away and "borrow" a new trend?

May 14, 2006

Flower Power

From Chanel camelias to Louis Vuitton cherry blossoms, flowers commonly adorn luxury goods -- real or fake.

But sometimes it's the authenticity of flowers themselves that is at issue.  Japan imports millions of carnations from China each year, with demand rising dramatically just prior to Mother's Day.  This year Japanese Agriculture, Forestry, and Fisheries Minister Shoichi Nakagawa announced an inquiry into whether Chinese flower growers are cultivating and shipping proprietary varieties of carnation without obtaining permission from their owners.

So if you forgot to send Mum flowers, you may have a ready-made excuse.

April 20, 2006

From Opium Wars to Handbag Wars

Chinese courts are busy with IP suits involving luxury goods this spring.  Here's the latest:

Hat tip to The Trademark Blog and to IP Dragon (twice).

April 10, 2006

Harajuku Lover?

Love the culture?  Write a song about it.  Then, use it to sell a handbag.

The putatively blonde singer/songwriter Gwen Stefani has previously proclaimed (and commodified) her attraction to Tokyo's Harajuku shopping district and the creatively costumed teens who populate it on her Love.Angel.Music.Baby album, as well as with her own entourage of four "Harajuku Girls."  Now, in addition to her celebrity designer line, L.A.M.B., Stefani has launched another fashion label:  Harajuku Lovers

Last year when the album appeared, MiHi Ahn at Salon, among others, argued that the singer had missed the point:

Stefani fawns over harajuku style in her lyrics, but her appropriation of this subculture makes about as much sense as the Gap selling Anarchy T-shirts; she's swallowed a subversive youth culture in Japan and barfed up another image of submissive giggling Asian women. 

OK, it's a good bet that Ahn won't be buying a Harajuku Lovers handbag, panties, or hoodie.  But should others be able to?

After writing a book on the subject of cultural appropriation and most recently spending the weekend at an international intellectual property conference hosted by the extraordinary Professor Peter Yu at Michigan State, where we discussed (among other things) the possibility of using IP to protect culture, I find the answer as complex as ever.  Are the stereotype and the commercialization of culture by an outsider offensive?  Yes.  Should we prohibit it?  My usual (and evolving) answer is (1) to adopt strategies that allow members of a culture to designate what is authentic (yes, that's a tough one too) and what is an imitation, and at the same time (2) to allow borrowing except in limited cases of sacred or secret aspects of culture that would be significantly harmed by appropriation. 

In this case, the Harajuku district and its denizens will presumably endure Stefani's affection, much as Kyoto will will withstand the Western attention generated by the novel Memoirs of a Geisha (and the award-winning costumes in the movie version) or Lanvin's kimono-inspired spring fashions.  After all, even the most creative street fashion draws inspiration from somewhere, and the Harajuku Lovers products are more about branding than literal copying.  And who knows what the reaction of Harajuku locals will be -- perhaps Stefani's line will be embraced (or even knocked off).

Still, I think I'll take my culture without the pop packaging.

March 24, 2006

Combating Copying on the Eastern Front

In a report on Japan Fashion Week, Suzy Menkes recognizes that competitive runway creations may originate as much from the lab as from the atelier:

Japan's inventive technology informs many aspects of its fashion.  A fabric display at the runway venue showed ultra-light synthetic fabrics, prints looking as though they were handcrafted and denim in myriad textures and weaves.

While the contribution of science to fashion is nothing new -- from spindles to sewing machines, buttons to velcro, clothing has long been the product of technology -- invention has taken on a new urgency. 

[Naoko] Munakata [director of the fashion policy office at the Japanese Ministry of Economy, Trade and Industry] believes that with China taking over the fabric industry and copying clothes with cheap manufacture, there has to be a new initiative from Japan.

"And that is where technology can help," she says.  "We need to expose Japanese fabrics to designers to create high end brands."

When it comes to Sino-Japanese conflict, at least fashion is a good theatre.

March 17, 2006

Mark o' the Irish

University of Notre Dame Fighting Irish trademarkThinking about honoring your Celtic heritage -- or perhaps just borrowing a bit of the luck o' the Irish -- by incorporating a shamrock into your trademarks or designs?  Think again, at least if you plan to market your goods in Ireland. 

According to the Irish Patents Office:

Any person who wishes to obtain registration of a trade mark containing a State emblem (harp, shamrock) or to use a State emblem in connection with any business must first obtain consent from the Minister.

Just a simple bit of green tape?  Not exactly.  The guidelines go on to state, "Authorisation to use the shamrock is restricted to goods or services of Irish origin." 

A thought for the fashion buffs out there:  Would British designer Charles James and his famous 1953 "four-leaf clover gown" have been affected by this rule, had it been in force?  Presumably the law wouldn't have reached that far, since only the outline of the hem formed a shamrock -- and, besides, his own rather nondescript name for the gown was "Abstract."

Happy Saint Patrick's Day!

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 28, 2006

Disparaging or Merely Descriptive?

Can "Not Made in China" be trademarked?

And are trademark offices a new hotspot in the culture wars?

IP Dragon, an interesting blog dedicated to "gathering, commenting and sharing knowledge about IP in China to make it more transparent," reports that Gibraltar-based Alvito Holdings has submitted three verbal and figurative applications for "Not Made in China" to the European Union's Office for Harmonization in the Internal Market (OHIM), while an unrelated individual has submitted five such applications to the U.S. Patent and Trademark Office (USPTO).  The applications cover categories such as clothing and leather goods.

Apparently China isn't pleased. 

At least as far as the U.S. is concerned, however, "Not Made in China" may be a tempest in a teapot.  A similar attempt to register "Not Made in France" for clothing resulted in a Trademark Trial and Appeal Board decision that the mark was "merely descriptive" and therefore unregistrable.  In re: VRBIA, 2004 TTAB Lexis 703 (not citable as precedent). 

And unless current trends in garment manufacturing are reversed, a "Not Made in USA" mark may one day be simply superfluous.

P.S.  The Trademark Blog, Marty Schwimmer's intelligent and informative site, has updated information on the U.S. applications.

February 21, 2006

Forecasting the Future, Preserving the Past

Beauty may be eternal, but fashion is an ephemeral medium -- "in" today, "out" tomorrow.  Yesterday's old clothes, however, may be tomorrow's "vintage" apparel or design "inspiration."  But how to preserve this legacy?

Today's International Herald Tribune reports that Italian fashion houses are taking matters into their own hands.  While Italy is a world leader in other forms of historic preservation, neither government interest nor funding extends to its most stylish patrimony.  In the absence of state-sanctioned fashion museums (as in France) or an established system of tax write-offs (as in the U.S.), companies like Pucci, Armani, and Fendi are investing in museum-quality storage facilities and archival record-keeping. 

The IHT quotes Laudomia Pucci, daughter of exuberant textile and clothing designer Emilio Pucci, on the value of fashion archives:

"They are such an inspiration for young designers," says Pucci.  "They look at fabrics, proportions, sewing techniques from the past."

Pucci does not intend to throw open the doors of the past to mere knockoff artists, though:

That is not to say, however, that [the archives] are intended to be copied.  "They are a bouncing board for tomorrow," she clarifies.

To paraphrase Sir Isaac Newton who paraphrased John of Salisbury who paraphrased Bernard of Chartres (who may have been paraphrasing someone else), "We are like dwarves standing on the shoulders of giants."  Or at least on fabulous platform heels.

Pucci wedge, Lune pink, Spring 2006

February 20, 2006

Whose Sari Now?

The Indian state of Orissa is taking steps to protect its unique, indigenous textile designs, which are being copied and exported by manufacturers in other regions of India.  Under the Geographical Indications Act, the state will patent original "ikat" designs and methods in order to protect local weavers.

Orissa - Ikat patterns

As Diana Vreeland famously declared, "Pink is the navy blue of India!" -- and color is just the beginning.

February 16, 2006

Countercultural Copying

Ever wonder how Argentine-turned-Cuban revolutionary Che Guevara ended up as a T-shirt? 

Check out the exhibit at the International Center of Photography in New York (through February 26).  Not only are there Che T-shirts from around the world, but also additional evidence of the comandante's commercial appeal, ranging from cigarette lighters to Cherry Guevara ice cream.  (Hello, Ben & Jerry's?)

Photographer Alberto Korda snapped the original shot, "Guerrillero Heroico," in Cuba in 1960, but failed to pay much attention to the copyright.  He apparently never received any royalties for use of the images, but did win at least one out-of-court settlement against an advertiser and claimed to be against the commercial exploitation of the image.  Presumably Che didn't receive any compensation either, even assuming that would have been consistent with his revolutionary Marxist politics.  Today Che's face is a steady source of revenue in Cuba, where T-shirt vendors greet arriving tourists at the airport. 

The specific message of the image, however, has decreased in inverse proportion to its popularity.  Viva la revolucion? Power to the people?  Overthrow the capitalist pigs?  Or just a dramatic, vaguely rebellious image?  You decide.

And meanwhile, take a look at the conservative competition.

January 21, 2006

Tom Waits for His Rights

Tom Waits is known for his distinctive, gravelly singing voice -- and his ongoing legal battle against commercial attempts to copy it.

The New York Times reports that last Friday a Spanish court awarded Waits damages in a lawsuit against Audi for imitating his voice and music in an advertisement; another case is pending against Opel in Germany.  But these are just the most recent of Waits' efforts.  Well over a decade ago, he won a similar case involving both U.S. federal and California state claims against Frito-Lay, 978 F.2d 1093 (9th Cir. 1992).

Waits has also been using that famous voice to repeat what his lawyers presumably told him, using the European civil law version of the legal argument: 

 "I have a moral right to my voice. It's like property - there's a fence around it, in a way."

He also added a personal note, however:

Mr. Waits said there were two kinds of imitation. "I don't mind if someone wants to try to sound like me to do a show," he said. "I get a kick out of that."

"I make a distinction," he added, "between people who use the voice as a creative item and people who are selling cigarettes and underwear. It's a big difference. We all know the difference. And it's stealing. They get a lot out of standing next to me, and I just get big legal bills."

So all those of you singing in the shower are safe, for now.

Tom Waits

P.S.  No word on whether Waits intends to expand his legal efforts to any future copying of his wardrobe.

January 16, 2006

The French Paradox

Chanel is a major global brand.  It gets knocked off.  It doesn't do the knocking off -- except maybe it does. 

Chanel currently stands accused of counterfeiting, by one of its own suppliers.  In a French court last week, World Tricot claimed that Chanel had rejected a WT knitwear sample and then gone on to produce an item of the same design.  The president of WT spotted the item in question, a white crochet vest with floral and shell patterns, in the window of a Chanel boutique in Tokyo. 

Lawsuits between manufacturers and major brands are nothing new.  The brand name company might challenge the quality of certain items, the supplier might miss delivery dates, or an unscrupulous manufacturer might produce extra items and distribute them through discount channels.  But in those cases, legal action would be most likely initiated by the design house, not the other way around.

Chanel claims that the initial sample was created according to its own instructions, presumably implying that it owns the design.  The commercial court wasn't ready to make that determination, though, urging both parties to settle their dispute through mediation to avoid potential "indirect consequences to the profession."

Or maybe the judge just couldn't believe what he was hearing. 

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.

January 01, 2006

Culture Clash

Today's New York Times Magazine offers the following out/in list for 2006, courtesy of Princeton philosopher Kwame Anthony Appiah:

Appiah's article goes on to challenge the thinking of cultural "purists" like those at Unesco who, he believes, wish to stop globalism and trap local peoples in their old cultural ways, all in the name of preserving human diversity.  According to Appiah, "Talk of authenticity now just amounts to telling other people what they ought to value in their own traditions."  Similar arguments have been made by proponents of international trade and economic development for some time.  Stop fighting Coca-colonization -- people everywhere want to drink Coke.

Original or not, Appiah has a valid point.  Or rather, half of a valid point.  Certainly, choices regarding the hybridization of culture should be the provenance of the people living it; moreover, some behaviors defended in the name of "culture" are indefensible from a liberal humanitarian perspective. 

Appiah ignores the other side of the issue, however:  many individuals do identify themselves as part of a group and do wish to protect the authenticity of the group traditions, especially against outside appropriation.  Some things, the argument goes, should not be copied, should not be copied badly, or, if they are copied, should acknowledge their source (financially as well as verbally).  Appiah's own native Ghana, for example, has had difficulties protecting its traditional textile patterns against cheap foreign copyists.  Corporations can protection their "traditions" in the form of trade secrets or trademarks; why shouldn't communities be able to engage in analogous branding exercises, with international encouragement and assistance?

Culture is, of course, fluid.  As I have written elsewhere, there are many social benefits that stem from this fluidity.  Under a global scheme that respects only individuals and "contamination," however, the processes of collective cultural creativity are devalued and creators' ability to balance the authenticity of cultural products against harmful forms of outside appropriation is lost. 

December 31, 2005

Year in Review III: Counterfeit Conversations

There may be neither societal consensus nor legal clarity regarding copying, but that doesn't prevent it from being an ongoing topic of discussion within the luxury goods industry.

From a January 2005 feature in Harper's Bazaar magazine and accompanying Anticounterfeiting Summit in New York to a November/December 2005 WIPO symposium in Italy -- and many events in between -- concerned parties have come together to knock knockoffs.  And they hope you're listening.

Police raids and lawsuits have some effect on the distribution of counterfeits, but where there's consumer demand, there will be supply -- witness the "world's oldest profession."  If people stop buying illegal fakes, however, manufacturers will no longer bother to produce them. 

But how to reach the fashion-savvy but impecunious or price-resistant consumer?  The quality argument is often unpersuasive, especially to the person just seeking a disposable fashion fix.  Appeal to the rights of designers generates little sympathy when they are charging $15,000 or $20,000 for a handbag.  Laws aimed at punishing consumers, like the new legislation in Europe, are unpopular and difficult to enforce.  Attaching social stigma to counterfeits, however, is a relatively new approach.

So, let's talk.  What's wrong with counterfeits?

The sale of counterfeits is controlled by organized crime?  This one is too easy.  Prohibition, bootlegging, Al Capone, remember?  If you declare alcohol, counterfeits, or anything else illegal, it won't be sold at a PTA bake sale. 

Counterfeits fund terrorism?  Could be.  But didn't they (whoever They are) just say the same thing about drugs?  And fear of terrorism as a justification for government action doesn't have quite the same rhetorical value as it did a few years ago.

Counterfeits are manufactured using child labor?  Well, major corporations like Nike have been accused of the same thing.  Yet this claim tugs directly at the heartstrings of consumers, particularly women, and it is elaborated in the current issue of Harper's Bazaar in "The Human Cost of Fakes."  As the poet Margaret Widdemer wrote nearly a century ago, "I have shut my little sister in from life and light/(For a rose, for a ribbon, for a wreath across my hair.)"  Buyer's remorse, anyone?

Whether all of this reflects a desperate/manipulative effort by manufactuers to protect profit margins, a genuine desire to eliminate a social evil, or perhaps both, I leave for you to decide.  One thing is certain, though:  this conversation will continue into the new year and beyond.

Happy 2006!

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 29, 2005

Year in Review II: China Chic

The new China is a source of inexpensive manufacturing for established brands -- as well as for their counterfeit counterparts.  The new Chinese consumer forms an emerging market for luxury goods -- and a market hungry for knockoffs.  China is a source of inspiration for Western designers, even as it adopts and adapts European style. 

With the official end of textile import quotas on January 1, 2005, the P.R.C. loomed even larger on the interntional clothing/textile scene.  As the months passed and U.S. imports from China showed double-digit increases over 2004, domestic manufacturers from North Carolina, high-end European manufacturers, and manufacturers in small, impoverished nations that previously benefited from quotas joined forces in seeking protection from a common threat.  Textile and clothing manufacturers also developed strategies to stay one step ahead of China by emphasizing speed, flexibility, creativity, quality, and technological advances.  Meanwhile, Western importers enjoyed lower prices and worried about possible emergency protection measures.  In the end, both Europe and the U.S. reached agreements with China -- for the time being. 

So, what's the connection between luxury goods and knockoffs, manufacturing and consuming, quotas and innovation?  All of these elements have focused global attention on China as key to the future of the clothing/textile industry, and they have raised the stakes for the establishment and enforcement of legal norms -- including those governing copying. 

China is frequently criticized as a pirate's paradise, despite the official existence of intellectual property laws.  In fact, a trade publication recently cited the estimate that 1 in 5 women on Chinese city streets is carrying what appears to be a knockoff Louis Vuitton handbag.  For years, respected academic types have attributed China's comfort with copying to Confucian cultural norms.  As the insightful and incisive law professor Peter Yu has pointed out, however, you might as well attribute illegal downloading of music in the U.S. to Judeo-Christian communitarianism.  After all, the U.S. has its own history of intellectual property piracy to live down. 

Well, if it's not a cultural thing, what is China's story with respect to IP piracy?  According to Professor Yu -- with apologies for vastly oversimplifying his research -- China is pretty much the same as everywhere else.  In other words, China will work harder to protect luxury goods and other forms of IP when it has a stake in such protection.  Which explains why China allegedly places greater penalties on the counterfeiting of Beijing 2008 Olympic merchandise than on other knockoffs. 

OK, Olympic trinkets are one thing, but as for couture, is China likely to become a stakeholder?  Well, Armani and Vuitton aren't exactly worried yet, but China did sponsor a small U.S. exhibition of current, high-end Chinese designer gowns this year.  Its location?  Not in fashion capital New York, but political capital Washington, D.C.  Message:  we're in the game.  And in China, televised fashion awards shows with the spotlight on international stars like Chinese-American Vera Wang may inspire a new generation of young designers.

China chic?  Definitely an important element in reflecting back on the Year of the Rooster.  And don't forget to check out books of the same name by both fashion historian Valerie Steele and designer Vivienne Tam

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

December 26, 2005

Year in Review I: Katrina and Counterfeits

Whether the culprit was global warming, mysterious astrological conjunctions, or sheer coincidence, 2005 was a bad year for water.  We began in the wake of a tsunami in the Indian Ocean and now end with the aftermath of Hurricane Katrina on the Gulf Coast -- events which the radiator pipes in my century-old landmark building felt compelled to imitate on a smaller scale, but that's another story. 

Our tale is one of U.S. Customs and counterfeits, laws and largesse.  It seems that the Bush Administration, while accused of ignoring the good citizens of New Orleans and surrounding areas, was in fact attempting to provide for their needs -- with counterfeit goods.  Warehouses full of fake trademarked items were emptied and the infringing contents sent to shelters, where the victims of Katrina were offered knockoff clothing, bedding, and even toys.  The Legal Times was kind enough to print my editorial on this curious federal strategy of seizing with one hand and redistributing with the other.  For the full text, please click here.

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.