B.A.F.F.L.E.D. Fashion Law
Big Brands Keep Fighting Fakes--
Counterfeiting is about 2% of world trade--equating to about $1trillion, according to the International Chamber of Commerce. Make no mistake, many purchasers of counterfeits were never going to purchase the real thing anyways. But, some were, and got bamboozled. Whether they were looking for the real thing or just something to pass at a quick glance, the harm done by fakes doesn't change. There's a cost far greater than the black market price.
Counterfeits are making waves in the fashion industry and it's nothing good. In recent months, designers have had to step their protection game up in several ways, just to keep the infringers at bay. As reported earlier this week, Christian Louboutin, Jimmy Choo, Celine and others have sought a slew of design patents to protect their creations.
The lack of copyright protection in America makes protection a bit of a challenge. Trade dress, trademark, and patents are heavily depended on, but take some time to secure. Stella McCartney had to sue Steve Madden for infringement on her "Falabella" bag--a bag already holding 2 design patents for its continuous chain design. Tory Burch also came up big recently in fighting for her "Isis Cross" trademark. She won $38.9M in a lawsuit against Lin & J to protect her trademark. Despite claiming victory over YSL, Louboutin is still awaiting trademark validity from the EU. This stems from their 2013 battle with Van Haren infringing on the red soles.
While keeping us showered with designs for the new season, designers have to keep an eye on the counterfeit market. According to NetNames, a London-based brand protection firm, counterfeiting is getting a consistent boost from e-commerce, channeling sales up about 15%. Much of the items are sourced through China--nearly 70%. The raw materials are there. The factories are there. And, the labor is pretty inexpensive. An NYC couple was was just charged with conspiring to traffic counterfeits after being caught with over 130,000 counterfeit items in their rented warehouse. Many of the goods were said to have been sourced from China. It's the largest source, but certainly not the only.
Counterfeiting is about 2% of world trade--equating to about $1trillion, according to the International Chamber of Commerce. Make no mistake, many purchasers of counterfeits were never going to purchase the real thing anyways. But, some were, and got bamboozled. Whether they were looking for the real thing or just something to pass at a quick glance, the harm done by fakes doesn't change. There's a cost far greater than the black market price. B.A.F.F.L.E.D. Fashion Law
The Battle at Red-Sole: Not so Cut and Dry-
The lawsuit between Christian Louboutin and Yves Saint Laurent appeared to be a trademark battle set to end easily. YSL would be told they could not use red soles on their shoes because Louboutin has a trademark on the color and use by another designer would confuse consumers. We explained this logic and lesson in trademark not too long ago.
Now it appears things aren't as black and white as they seem. There's some gray....maybe even red. Trademarks have a number of provisions to be met for use and protection, and color is no different. Colors can be trademarked when they serve the function of identifying a brand in the market. The Tiffany teal-blue boxes fall into this category. One would think the red bottom does as well, but it is not the story Mr. Louboutin is telling. He said the shoes have red soles "because red “attracts men to the women who wear my shoes." True and fine, but uh, did you check with legal on this?
To protect the trademark, the designer must prove the red bottoms serve as an identifier for their products--which in the market, they do! Everyone knows and expects red soles from Louboutin. However, this case must be successfully made in court. Red soles by any other designer will cause confusion and hurt the Louboutin brand.
We are anxious to see what happens next, and will keep you posted, step after red-soled step.