Ever wonder why vintage clothing has very few external logos, and then starting around the 1970s everyone seemed to slap initials all over everything?  (Well, with at least one exception:  Bottega Veneta bucked the trend with its signature intrecciato leather and the sly motto, "When your own initials are enough.")

A new biography, Being Armani, offers a reason for logomania -- the very one that Counterfeit Chic has long surmised.  In a passage from the book, the Italian designer describes his decision in the early 1980s to use his initials on designs for the Emporio Armani line:

I liked the eagle just fine, but I wasn't sure about my monogram on it, since I had always been a little finicky about the excessive use of monograms in the world of fashion, for instance, the craze for initials everywhere, from belt buckles to overcoat linings, and then taking them from the lining to the exterior, using it as a decoration on the clothing itself.  The problem was the growing phenomenon of copies, which were increasingly common.  The imitators were really good at it.  Sometimes I fall for it myself, and I would really have to look closely to see whether something was by me.  We needed a logo, even if it did not constitute a foolproof deterrent. 

In other words, absent protection for actual clothing and accessory designs, a clever lawyer somewhere realized that liberally deployed trademarks could serve as a stopgap measure, and the word spread.  Even Giorgio Armani, the most elegant of minimalists but also a clever businessman, succumbed to the lure of trademark protection. 

Of course, there are other reasons for using prominently displayed logos, including social signaling and aesthetic preference.  And emerging designers whose logos are not particularly recognizable or valuable can't deter copyists whose target is their designs, not their trademarks.  Still, it seems that logomania is what you get when the law has a lacuna -- and fashion designers cede their authority to trademark lawyers.

Posted by Susan Scafidi at 12:59 PM | Permalink

Newsweek columnists Barbara Kantrowitz and Pat Wingert took the measure of two controversial laws aimed at weight, one a French proposal that would ban advocating "extreme thinness" (text here) and the other a New York City regulation that requires chain restaurants to post calorie counts.  Although the rules fall at opposite ends of the scale, their supporters share a belief that legislation can contribute to the battles against anorexia and obesity, respectively. 

As the article notes, your favorite law professor is skeptical about the wisdom of outlawing speech very likely to originate with eating disorder sufferers themselves. 

And as for prominently posted calorie counts, I recently noticed an accusatory 410-calorie sign standing between me and a Starbucks brownie.  Reader, I ate it anyway. 

Posted by Susan Scafidi at 12:40 AM | Permalink

Legally speaking, that is. 

Eco-friendly fashion has escaped the confines of shapeless, formless, colorless sack dresses and ugly earth sandals to become a major fashion trend, with cutting-edge retailers like Barney's New York shouting, "Don't Panic!  It's Organic!" and celebrities adding their names to labels that promise sustainable, recycled, natural, biodegradable, cruelty-free, fair trade fashion fixes.  With the text on some hang tags longer than an editorial in an alternative weekly and the British Advertising Standards Authority cracking down on unsustainable claims regarding "sustainable" cotton, Milwaukee Journal Sentinel reporter Lori Price asked your favorite law prof whether U.S. law offers any specific regulations regarding green clothing claims.

The short answer is no.  While agricultural products like cotton must meet federal standards in order to make specific claims, the law hasn't yet caught up with exactly what it means to be "green."  And while other industries like architecture and cosmetics are working to establish uniform standards, the fashion industry hasn't yet launched a similar effort.  As long as statements about clothing aren't actually false or misleading, a green label can refer to anything from raw materials to manufacturing to labor standards to, well, the color of the garment. 

If the eco-fashion trend lasts longer than the average trip down the runway, however -- something that would benefit manufacturers under pressure from cheap and allegedly eco-unfriendly overseas production -- the law is likely to have something to say about it.  After all, Kermit the Frog is always right in the end.

Thanks for the article, Lori! 

Posted by Susan Scafidi at 09:26 AM | Permalink

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. 

Posted by Susan Scafidi at 10:59 PM | Permalink

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? 

No, 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.

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.   

Posted by Susan Scafidi at 12:43 PM | Permalink

The morning after Halston's first fashion show, socialite Babe Paley showed up outside his studio seeking to purchase her favorite look -- immediately.  Now you can do the same.

The latest reincarnation of the iconic designer's label will appear on a New York runway at 2 pm today.  Tomorrow, online retailer Net-a-Porter will offer 2 of the looks, a daytime dress and an evening gown, with same-day delivery in New York and London and next-day delivery elsewhere.  In an industry where the 4-to-6-month gap between display and delivery has been under increasing pressure from consumers who have immediate access to Style.com, blogs, and television coverage, the plan is both revolutionary and inevitable.  No, it won't work for every look from every show -- the 2 dresses had to be chosen and manufactured in quantity beforehand, as yet too great a commitment to become standard practice for high-end items -- but it's a fabulous "what's next" moment.  And great PR.

Even better, it's an answer to the ubiquitous copycat problem.  WWD quotes Net-a-Porter founder Natalie Massenet:

"I am sure this will be a shock to the brands that specialize in knocking off some of the talent in the fashion industry,"  she added.  "They had their cake and have been eating it for a while, and we're now saying, 'We work with the brand to reclaim their ability to sell their product first.'"

Stefani Greenfield, co-owner of Scoop, NYC, concurs:

"For so long people have been knocking off and getting it out there and beating a designer that has to deal with craftsmanship, workmanship, and details that take time," she said.  "This allows the consumer to be part of our moment in fashion."

Presumably music to the ears of Harvey Weinstein, one of the current owners of the Halston name and no fan of fakes. 

By all accounts, the man born Roy Halston Frowick would've loved the idea, too.  Not only did he dress the stylish denizens of Studio 54, but -- following an idea that was well before its time -- he also created a line for J.C. Penney.  Although his mass-market move nearly destroyed the brand, as high-end accounts and clients fled the association, it was nevertheless a vision of the future.  Halston surely understood that instant gratification is always in style -- and what could be more modern than shopping for designer creations while wearing pajamas? 

Posted by Susan Scafidi at 01:22 AM | Permalink

According to an article in today's WWD, many designers' strategy for spring is unprintable.  Or nearly unprintable.

As a deterrent to knockoff artists, designer labels are relying on intricate and technically complex fabric prints and surface designs that would be difficult to replicate on the cheap.  In other words, it's no accident that everything's coming up roses -- and peonies, and lillies, and abstract modern blossoms beyond nature's ken -- for spring.   Reporter Alessandra Ilari notes:

[S]ince the new prints are immensely complicated, and, in many cases, hand painted, they're also increasingly a way for designer brands to differentiate themselves from the fast-fashion retailers -- and counterfeiters -- snapping at their heels. 

"One of the main reasons we have chosen to explore two-dimensional design and surface through embroidery is that it is very difficult to copy.  The labor involved is difficult and time-consuming, which makes mass producing and/or copying impossible," asserted Jack McCollough of Proenza Schouler.

Added Stefano Gabbana [of Dolce & Gabbana]:  "Though our creativity is never influenced by counterfeiters, whoever wants to copy this collection is in for a tough time." 

***

"We develop a lot of different versions of an idea, and when we do a print, the idea is to get it to our own stores as quickly as possible, so there is less of a chance of quick knockoffs," [designer Cynthia] Rowley said, adding that what distinguishes a real print from the knockoff is in the quality of the fabric.

Of course, original fabric prints and 2D decoration are subject to copyright, unlike the underlying clothing designs -- a legal protection that designers such as Diane von Furstenberg have successfully invoked against copyists.  But adding a few thorns among the roses isn't a bad idea either.

Related posts:  Inimitable Intricacy, Pattern Recognition

Posted by Susan Scafidi at 11:59 PM | Permalink

Fans of the U.S. television show What Not to Wear (yes, a knockoff of the British original) will recognize host Stacy London in her spinoff show, Fashionably Late.  Some of the red carpet gowns that Stacy recently featured may also look suspiciously familiar -- though the long-limbed models are of the four-legged rather than the two-legged kind. 

This isn't the first time that Counterfeit Chic has covered the Little Lilly canine couture copies -- or noted that while Lara Alameddine's doggie dresses themselves do not violate intellectual property laws, use of celebrity photos or an image of a trademarked award might.   

Interestingly, despite the outcome of the widely publicized "Chewy Vuiton" case, American designers have thus far shown little interest in limiting knockoffs intended for pets.  The proposed Design Piracy Prohibition Act makes no mention of animal clothing in its definition of fashion designs, so presumably even an exact copy of a Shih Tzu's sweater or a poodle's poncho would be fair game after passage of the bill (apart from any logos or labels).  A canine version of a couture gown might might meet the test for determining infringement of the original, but it is by no means certain that the adapted version would be sufficiently similar to the original to trigger protection -- even if marketed as a copy. 

Perhaps the canine couture market is too small to attract attention, or perhaps our biological predisposition to favor neotenous creatures makes us unwilling to censure anything that makes adorable little dogs even more so -- at least the eyes of those who regularly match their pets to their handbags. 

But with all due respect to Ms. London's guest, Counterfeit Chic's four-legged friends appear to prefer wearing only their own original -- and fabulous -- furs.   

Posted by Susan Scafidi at 02:01 PM | Permalink

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. 

IP 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.

And 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.   

Posted by Susan Scafidi at 09:07 AM | Permalink

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

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

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

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

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

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

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

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

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

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

Posted by Susan Scafidi at 08:37 AM | Permalink

Last month, Counterfeit Chic noted that -- in the absence of U.S. legal protections -- some designers manage to evade mass copyists by creating looks that are too difficult or too expensive to imitate. 

Now Cheryl Lu-Lien Tan at the Wall Street Journal reports that the technique has become a trend, with this season's creative tailoring and luxurious fabrics posing a challenge to would-be knockoff artists.  Deliberate diversion or bonus by-product?  Apparently there's stylish strategy at work:

Graeme Black, who recently stepped down as chief designer of womenswear at Ferragamo to focus on an eponymous line, says part of his goal in creating cocoon-shaped coats and jackets with draped collars and puffy sleeves for both labels was to set them apart from mass-market styles.

How do these differences translate to actual garments?  The WSJ asked an expert, who noted that while this season's celebrated leg-o'-mutton sleeve at Lanvin (left) relies on quality fabric and careful stitching to maintain volume and symmetry, the loosely woven fabric and pintucks on a similarly shaped sleeve from H&M (right) result in a limp look. 

In other words, sometimes you get what you pay for.

P.S.  Thanks to Chris Hoofnagle -- who has a very long memory for scholarly interests -- for the tip! 

Posted by Susan Scafidi at 01:47 AM | Permalink

Kids love stickers.  Geek kids use them to decorate notebooks, slacker kids use them to personalize skateboards, and jock kids add them to football helmets. 

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

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

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

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

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

Posted by Susan Scafidi at 08:48 AM | Permalink

Burned by the lack of protection for fashion designs under U.S. law?  Try slapping a giant logo on your creation (for trademark protection) or replacing solid color fabric with a print (copyrightable by the fabric designer). 

Or, if your vision calls for elaborate draping and complicated construction -- and your customers have deep pockets -- stay one step ahead of the copyists with designs that are simply too difficult or too expensive to replicate on the cheap. 

Of course, such technical sophistication doesn't come easy, especially when it comes time to put finely tuned figments of the design imagination into real life production.  That's why designers call upon expert patternmakers like Nicolas Caito, featured in the September issue of Elle, to realize their visions.  The article notes:

[W]hen Peter Som wanted to create a snail-like ripple in the center of a cocktail dress for fall, he, too, called upon Caito, this time to help grapple with the twisted seams.  "I realized we had to bias-cut the fabric to get the shape of the wave that Peter had in his sketches," Caito says, pointing out that in today's age of cheap copycat couture, the designer's commitment to such artisanal detail is rare. 

Luckily for designers who can afford Caito, patternmakers with his training and experience are also rare.  Copyists aren't known to invest in technical expertise or design innovation -- leaving Som's creation safe, for now.  

Despite the ubiquity of fast fashion, it's nice to know that there's still time for a "snail-like ripple." 

P.S,  To see the work of another emerging designer whose elegant techniques have been described as too sophisticated for mass market copyists -- though she's had some suspicious visitors -- go to Kelima K's website or visit her Nolita boutique. 

Posted by Susan Scafidi at 03:19 PM | Permalink

Once again, as the dust settles in New York and the fashion scene shifts to London, Milan, and Paris, Counterfeit Chic features the fashion editors and critics whose prose upholds the social norms against creative designers copying one another too obviously.  In other words, here's a look at how the press does the work that U.S. law will not -- so far. 

For the Spring 2008 season, the New York Times' Cathy Horyn offered a "demerit" to the Proenza Schouler boys, who despite their "talent and charm" suffered in her opinion from "a detectable Balenciaga influence" that "cast a degree of doubt over the designers' ability to establish a clear brand identity."  (Then again, who hasn't been influenced by Balenciaga over the past couple of seasons?)

The most vituperative comments were reserved for Marc Jacobs, whom both the International Herald Tribune's Suzy Menkes and the Washington Post's Robin Givhan took to task for making them wait over 2 hours -- until after 11pm -- for a derivative show. 

In Givhan's words, "Most disappointing was that Jacobs spent a significant amount of time merely repeating or paraphrasing what designers such as [Rei] Kawakubo [of Comme des Garçons], [Martin] Margiela and the Dutch team of Viktor & Rolf have already said aesthetically." 

Menkes concurred, adding that the "magpie collection was vaguely comprehensive to fashion buffs because it was an echo chamber of existing ideas from John Galliano's haute romantic 1920s ladies to Jacobs's own foraging in the vintage closet." 

So incensed was Jacobs by the criticism that he fought back with a call to WWD, in which he not only addressed rumors regarding the reason for the late start but also defended himself against charges of copying.  In his words:

I've never denied how influenced I am by Margiela, by Rei Kawakubo, those are people that inspire my work; I don't hide that.  For her [Menkes] to turn this into this hate fest for me and my collection I think is ridiculous....I expect people, whether we're two hours late or two hours early or we don't show at all, to look at what they see:  the clothes.  Of course there are comparisons to other things.  I'm a designer living in this world who loves fashion...I'm attentive to what's going on in fashion, I'm influenced by fashion, that's the way it is.  I have never ever hidden it.  I have never insisted on my own creativity, as Chanel would say.  I have my interpretation of ideas I find very strong.  Jil Sander is influenced by Comme des Garçons, Miuccia Prada is influenced by Comme des Garçons, everyone is influenced by Comme des Garçons, Martin Margiela.  Anybody who's aware of what life is in a contemporary world is influenced by those designers.

Jacobs has a point:  influence is one thing, imitation is another.  On the other hand, writers like Menkes and Givhan have significant experience at telling the difference -- and when it comes to upholding fashion's creative standards, they're not afraid to wield some influence of their own.

Related entries:  Critical Mass, Critical Mass 2

Posted by Susan Scafidi at 12:05 AM | Permalink

Watch out, Forever 21.  There's a new sheriff in town. 

Anna Sui, one of many designers lining up to accuse the fast fashion chain of copyright infringement (complaint here), has moved the fight onto her own territory -- creativity.  Guests at her Spring 2008 runway show received parchment-colored T-shirts with "Wanted" posters depicting Forever 21 founders Don and Jin Chang, a.k.a. "Don Cassidy and the Sundance Jin." 

Anna Sui also took the opportunity to remind the Bible-quoting defendants, who print the phrase "John 3:16" on their shopping bags, that Christianity actually comes with its own legal code.

But I'd like to think that Anna took particular pleasure in drawing mustaches on her alleged copyists.  Waiting for the legal system to respond is all well and good, particularly when there's a strong cause of action and a notorious wrongdoer on the stand.  In the meantime, a bit of humor hits the mark.

Nice shooting, Ms. Sui.

P.S.  For another designer's Fall 2006 Fashion Week commentary on copying , click here.  If you can't beat  'em, mock 'em. 

Posted by Susan Scafidi at 02:54 PM | Permalink

What would life be like without the mixed blessings of the internet?

In today's New York Times, Eric Wilson goes behind the scenes at Simonia Fashions, one of many companies waiting for the first photos from New York Fashion Week to appear online.  Not because the proprietors are interested in fashion's new creative direction, mind you, but so that they can pick out the most popular designs and get cheap copies into stores -- often before the originals are available for sale. 

Naturally, the retailers selling the knockoffs disclaim any actual knowledge of copying, pointing back to their suppliers as the source of the controversial clothing. 

In the U.S. all of this occurs without interference from any of those inconvenient intellectual property laws that might actually protect creative fashion designers.  Interestingly, the company featured in the article outsources its manufacturing to India, where design protection does exist.

It's enough to make one long for the good old days days of rough pencil sketches and descriptions sent via telegraph.

Bonus point:  Who is the "expert working with the designers’ trade group" who in the article offered a rock-bottom, minimum estimate of the percentage of knockoffs in the apparel and accessories market?  You guessed it.  And just for the record, since some of you have asked, I do not now nor have I ever represented the CFDA; all of my opinions are my own and are the product of my academic research.  All of my work on this issue, moreover, has been pro bono -- both in the literal sense of "for the good" and in the more colloquial sense of "free of charge." 

Posted by Susan Scafidi at 01:51 AM | Permalink

The Senate version of the Design Piracy Prohibition Act, S1957, has only just been introduced, but it's already having a deterrent effect.

After the New York Times illustrated Eric Wilson's article on the bill with an original Anna Corinna "City Bag" (left) next to a near-identical but much cheaper "City" bag by Sarah Jessica Parker's Bitten line for Steve & Barry's, the guilty retailer hastened to apologize.  WWD quoted from its statement:

A prototype of a bag Sarah Jessica Parker and the Bitten design team never approved for production was inadvertently produced by Steve & Barry's.  When the error was discovered, production of the bag was immediately stopped.  It was never put on sale at Steve & Barry's stores, and images of it were eliminated from all marketing materials.  This unfortunate incident has resulted in Steve & Barry's examining its entire production process and making appropriate changes to help ensure this type of error doesn't happen in the future.

Is Steve & Barry's sincere, or is SJP just trying to avoid the bad publicity garnered by other celebrity copyists?  Time will tell.

For the moment, however, the blogosphere is watching.  The suspicious similarity between the bags was originally noted on Fops and Dandies (after a picture of the Bitten version appeared on NYT fashion critic Cathy Horyn's blog)  then republished by Fashionista before being picked up by the actual print edition of the Times.  Nice catch!

Posted by Susan Scafidi at 11:42 AM | Permalink

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.

Posted by Susan Scafidi at 11:20 AM | Permalink

With prints back in fashion and knockoffs in the news, the fashion community has begun to keep an eye out for suspicious sartorial similarities.  Check out these contributions from nitro.licious, Fashionista, and Fashion Theory, respectively:

And now the legal question:  If the original dresses (left) were subject to design protection in the U.S., as they are in Europe and Japan and as proposed in the recently reintroduced Design Piracy Prohibition Act, would the copies infringe that protection?

Answer:  No.  The dress designs as a whole weren't copied; only the fabric patterns are the same.

Q:  So these copies are legitimate?

A:  No, I didn't say that.  If they're actually copies, they may very well violate the U.S. law as well as that of other countries.  The question is, which type of law?

Each of these fabric prints may qualify for copyright protection, in the U.S. and pretty much everywhere else.  That's how DVF could bring her much-discussed lawsuit against Forever 21.  New legislation won't change that in any way.  Just like images created with ink on paper or paint on canvas, prints created with dye on fabric are subject to copyright protection -- and have been under U.S. law for over half a century.

Much of the time, however, this copyright is held by the company that created the fabric, not the designer who created the garment.  Some designers sell a large enough volume and are successful enough to design their own prints on a regular basis, in which case the designer holds the copyright, but most designers simply purchase material from fabric mills.  If the order isn't large enough to be exclusive, this can result in 2 designers using the same fabric -- just as if 2 individuals went to the same store and bought a few yards each from the same bolt of fabric.  This isn't noticeable if the fabric is, say, black wool crepe, but printed cotton is another matter. 

If the prints on the left were created by the designers of the original dresses (presumably Anna Sui's claim, since she's brought a lawsuit against Forever 21), then the copies may very well infringe copyright.  If, however, the printed fabrics were simply bought from the same source, no problem.   Another possibility is that the fabric prints were copied but are in the public domain, like older vintage works -- again, no problem. 

Whatever the story with these particulalr fabric prints, the original garment designs cannot be protected in the U.S.  Of course, in these examples the garment designs weren't copied, so the question of infringment would in any case be limited to copyright in the fabric prints (or possibly patent, but that's another matter). 

What design protection offers is the ability to protect not just the print, but the overall design of the garment.  The idea is to give fashion designers rights to protect their designs.  At the moment, fabric designers get protection in the U.S., while fashion designers don't. 

In other words, if our intrepid fashion bloggers are correct, then the copyists responsible for the images on the right aren't exactly legal luminaries.  They engaged in unauthorized duplication of the only protected part of the original dresses -- the fabric prints -- while ignoring the unprotected garment designs. 

Call in the lawyers -- it's time to send out the C&Ds. 

Posted by Susan Scafidi at 01:07 PM | Permalink

Someday, academia will finally take fashion seriously.  This will result in a great deal of valuable social and cultural history, along with dissertation titles like, "On Her Shoulders:  Silhouette and the Re-Construction of Western Women's Economic and Political Power."  

Until then, we must be content with well-researched newspaper articles like the one by Rachel Dodes and Teri Agins in this weekend's WSJ, which notes the return of the "strong" shoulder to women's fashion after nearly 20 years on the "out" list. 

Although it's possible to overread the social significance of any individual fashion statement, the return of the exaggerated shoulder seems appropriate at a moment when for the first time there have been serious woman presidential candidates in both France and the U.S., Germany has a woman chancellor, a woman leads the U.S. House of Representatives, etc.  At the same time, the rights of women around the world are under close scrutiny and dress is at the heart of global cultural warfare. 

As Dodes and Agins point out, wide shoulders have been fashionable in the late 1890s and early 1900s (first-wave feminism and suffrage), the 1940s (women working while men were at war), and the 1980s (women entering the workplace en masse, this time to stay).  (The sartorial echoes of this exercise of economic and political muscle are, of course, quite different from dressing to express sexual liberation through raised hemlines, low waistlines, and still lower necklines.) 

Lest this year's broadening of the female shape to more masculine proportions raise the spectre of assertive "power dressing" from two decades ago, however, the designers and retailers interviewed for the article hastened to explain away any direct connection.  Not only are the new shoulders actually "less severe and aggressive than in the past" and more "modern," they also are justified as an exercise in fine tailoring, a natural counterpoint to emphasizing the waist, and, Counterfeit Chic's favorite, a deterrent to design pirates:

One potential side benefit: The shoulders' complicated constructions make them harder for fast-fashion chains to copy.

And yes, they do make the hips look smaller. 

Posted by Susan Scafidi at 12:15 PM | Permalink

"Armani was like any other baby, right down to his daily bottle, red stroller, Huggies diapers -- except for a hole cut out for his tail..."

No, the Washington Post isn't reporting a reality-based twist on The Devil Wears Prada.  The Armani in question is not the Italian designer -- who is NOT rumored to have a tail -- but his simian namesake, a capuchin monkey accused of being an illegal resident of Rockville, Maryland. 

The monkey's owner, Elyse Gazewitz, claims that she purchased him before a state law forbidding ownership of certain wild animals took effect last year. 

Could her choice of name for little Armani raise a different kind of legal objection, however?  As trademarks comprise an ever-increasing part of our cultural vocabulary, naming pets and even children after brands has become a common practice.  Could this trend constitute a violation of trademark law?

Happily for all the poodles named Chanel and pugs named Bentley, trademark infringement (including dilution of a famous mark) can occur only if the name is used in commerce.  So unless Ms. Gazewitz intends to become an organ grinder and thus in need of a traditional capuchin monkey to solicit donation from passers-by, Armani's name -- if not his residence -- is probably safe from legal threat. 

Then again, Armani's legal defense looks to be fairly expensive...

Posted by Susan Scafidi at 02:48 PM | Permalink

Posted by Susan Scafidi at 10:20 PM | Permalink

Legal systems are predicated on the basic idea that dispute resolution and the righting of wrongs is better achieved through peaceful adjudication than, say, punching the other guy in the nose.  The downside is that the ostensibly civilized path to justice can be an expensive and time-consuming one, and not every ethical wrong is as yet protected by a legal right. 

Enter, then, the court of public opinion, where judgment is at least swift -- especially on the internet. 

Urban Counterfeiters is one such venue, dedicated to "bringing American consumers reports from small companies and artists who have been taken advantage of by large corporations."  (See also previously featured site You Thought We Wouldn't Notice....)  As you might expect, the Urban Outfitters chain ("the Wal-Mart of cool") is among UC's targets -- and has been subjected to not only online disapprobation but old-fashioned in-the-flesh protest and pamphleteering as well. 

Could the T-shirts designs and other original creations on the site have been protected by copyright or perhaps trademark law?  In many instances, yes.  But in the meantime, a bit of (judiciously exercised) extra-judicial action certainly sends a message. 

Many thanks to my engaged and engaging student James Creedon, Fordham law library guru Larry Abraham, and above all Anonymous for making sure that I finally posted this one!  And don't forget to head over to Murketing for further reflections on the subject. 

Posted by Susan Scafidi at 02:47 PM | Permalink

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!

Posted by Susan Scafidi at 10:39 PM | Permalink

Designers frequently complain of uninvited photographers snapping pictures at trade shows and in retail venues, presumably with intent to copy the designs.  Some concerned stores, in an effort to protect their investments as well as their designer sources, ban in-store photography altogether.  One millinery expert, however, says that it takes more than a photo to make a knockoff hat -- or at least a "decent" one. 

So put on your Easter bonnet, head out to the closest parade, and smile for the cameras!

Happy Easter!

Posted by Susan Scafidi at 12:25 PM | Permalink

The fashion flock has left New York and passed through London on its way to Milan and Paris, so it's high time for Counterfeit Chic to gather up a few Fall 2007 copying-related comments from sharp-eyed fashion critics, editors, and others:

The New York Times' Cathy Horyn and International Herald Tribune editor Suzy Menkes saw ghosts of Alaia everywhere (as did others, particularly at the Derek Lam show).  As Horyn noted:

About the only designer in New York who doesn’t attempt to resuscitate the dead is Narciso Rodriguez. I mean, if I see another Adrian, Mainbocher, Alaia or quietly finessed McCardell look…

Menkes went one step further, writing off the New York season almost entirely:

Ultimately, the New York shows remained stubbornly grounded, for instead of soaring to a new place, the collections were often tied to a retro futurism that took off with a Balenciaga show one year ago.

WWD reported on the response of Pierre Berge, Yves Saint Laurent's longtime partner, to the YSL references in Marc Jacobs' collection:

"It's true that it's inspired by Saint Laurent," Berge mused.  "But it lacks the great precision of Saint Laurent."  Pausing, he added, "Still, it's better to be inspired by Saint Laurent than by John Galliano!"

Writing for Daily Fashion Report,