From Runway To Replica: The Most Fashionable Intellectual Property Infringement Beefs Of 2017

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

New York Fashion Week (NYFW) 2018 kicks off on Thursday, February 8 through Friday, February 16, with a full schedule of exciting an exhilarating runway shows. This year’s designers include many of the usual faces, like Tom Ford, Ralph Lauren, and Jason Wu, to name a few. As usual, there is some controversy concerning designers that are notably missing from this year’s schedule, like Georgina Chapman’s label Marchesa. Chapman (the estranged wife of film producer Harvey Weinstein) has apparently cancelled her customary runway show in the wake of her husband’s sexual misconduct scandal, which spawned the #MeToo movement. Other designers have embraced the #MeToo movement, and at least one designer, Myriam Chalek, is expected to do a runway show centered on the movement. Chalek’s show, titled “The #MeToo Fashion Show: Slap the Pig Outta Him!!, is expected to unveil clothing that visualize sexual harassment experiences in the fashion world.

Despite all the serious talk of sexual harassment, many designers continue also to talk about the business pains associated with runway shows, including the prevalence of knockoffs that are expected to pour into the market after the shows are over. In 2017, designers continued to fight back against alleged fake and counterfeit fashions, and many fashion infringement lawsuits in 2017 continue to make headlines in 2018. Below is a look back at the top five trademark, copyright, and design patent infringement lawsuits that had the fashion world talking in 2017. You’ll notice that one particular fashion retailer kept its lawyers quite busy last year.

Puma v. Forever 21

Fast fashion retailer Forever 21 is no stranger to being a defendant in an IP infringement lawsuit. In 2017, German fashion company Puma filed a complaint in California district court against Forever 21, alleging that Forever 21 infringed its rights in a line of Puma footwear products made in collaboration with singing sensation Rihanna. Puma sought a preliminary injunction and temporary restraining order to halt Forever 21’s sales of its three shoe designs that Puma alleged were identical to Puma’s “Creeper” sneaker, “Fur Slide” sandal and “Bow Slide” sandal. Puma pulled out all of the stops in its complaint, including relying on a trifecta of intellectual property violations – copyrights, trade dress, and design patents. (As discussed in a prior blog post, brand owners can rely on these three distinct intellectual property rights to protect certain fashion designs.) In asserting its copyright claims, Puma cited the 2016 Supreme Court copyright case Star Athletica v. Varsity Brands and alleged that elements such as a “casually knotted satin bow” can be “perceived as a two or three dimensional work of art separate from the Fenty Shoes and . . . would [also] qualify as protectable pictorial, graphic, or sculptural works—either on their own or fixed in some other tangible medium of expression.” Whether Puma’s Fenty line of shoes are protectable under copyright law will eventually be decided. For now, the Court has ruled that, even if it is, Puma failed to show irreparable harm and therefore was not entitled to a preliminary injunction against Forever 21. This early win for Forever 21 is huge, and the fashion world will continue to watch this case play out over the next several months.

Chanel v. Amazon Storefronts

 While the thought of purchasing a genuine Chanel product on Amazon seems incredulous, that didn’t stop a slew of third-party Amazon sellers from listing various Chanel-branded products like bags, T-shirts and cell phone cases on the online marketplace. In response, Chanel filed a complaint in Florida district court against several of those storefronts for selling counterfeit Chanel products and infringing Chanel’s famous interlocking C logo. The French fashion house sought $2 million in damages from each storefront and demanded that their online stores be permanently removed from Amazon. Some of the sellers initially tried to convince Chanel to drop its lawsuit against them, with one claiming that it mistakenly uploaded photos of Chanel-branded products to its Amazon store, while another denied selling counterfeit products altogether. However, Chanel wasn’t having any of that and continued forward with its lawsuit, including obtaining a preliminary injunction against the sellers. The court eventually entered a default judgment against thirty such sellers, awarding Chanel $100,000 against each of the storefronts. Following the ruling, Amazon was required to permanently disable the storefronts of the accused sellers, remove all images of the infringing products bearing Chanel’s trademark, and transfer any funds held in the accounts of the sellers to Chanel.

Forever 21 v. Adidas

Yes, you read it right. In a rare turn of events, in 2017 Forever 21 (usually the defendant) decided to file a complaint in district court in California against Adidas, seeking a declaration from the court that its sale of striped clothing did not infringe Adidas’ 3-stripe trademark. According to Forever 21, it had suffered Adidas’ threats long enough, and was “tired of operating with a cloud over its head with regard to its right to design and sell clothing items bearing ornamental/decorative stripes, and unwilling to stop doing something it has every right to do and pay a bully to leave it alone.” The lawsuit was later moved to district court in Oregon, where Adidas brought infringement claims against Forever 21. Everyone will be watching to see how this lawsuit pans out. If Forever 21 wins, this could have a huge impact on how Adidas continues to enforce its famous 3-stripe trademark in the U.S.

Forever 21 v. Gucci

On the heels of its lawsuit against Adidas, and after allegedly receiving cease and desist letters from Gucci, Forever 21 filed a complaint against Gucci in California district court, seeking a declaration from the court that it was not infringing Gucci’s blue-red-blue and green-red-green stripe trademarks. Forever 21 also sought to cancel Gucci’s trademarks on grounds that they lack secondary meaning, are aesthetically functional, and generic. As you can imagine, Gucci was not happy. In response, it moved to dismiss Forever 21’s claims for cancellation, and filed counterclaims against Forever 21 for trademark infringement, trademark dilution and unfair competition. The court granted Gucci’s motion to dismiss, stating that it was “skeptical that [Forever 21] . . . sufficiently alleged facts to support its claims for cancellation.” The case will continue on as the parties fight over whether Forever 21 in fact infringed Gucci’s trademark rights.

Aquazzura v. Ivanka Trump

Technically, this beef started in 2016, when Italian footwear brand Aquazzura sued Ivanka Trump in New York district court for allegedly infringing Aquazzura’s trade dress rights in its “Wild Thing” fringe sandal and “Forever Marilyn” pump. However, the fight exploded in 2017, when Aquazzura demanded that Ivanka Trump be deposed during the discovery phase of the case. Ivanka Trump’s attorneys argued that she should not have to submit to a deposition in a lawsuit because “she was not involved in the design, promotion or sale of the shoe.” However, the judge disagreed and ruled that Ivanka Trump could be deposed since, according to her public statements, she played an active role managing the brand. The parties eventually settled their dispute towards the end of 2017, leaving us lawyers to wonder whether Aquazzura’s trade dress claims would have actually held up in court.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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