Guest Blog by Brittani Dockery
Imagine. You are walking through your local mall, and something catches your eye. There, perched pristinely in the front window, in all its Italian leather glory, is the perfect Louis Vuitton bag. You can already picture it on your arm, along with all the compliments you will get. That’s until you check the price tag. Yikes!
Instead you opt for the less expensive, near-identical, knock-off, which has “made in China” stitched so far down into the depths of the purse, that not even a trained “luxury purse connoisseur” would notice.
As you walk away, satisfied with the thought of your future purchase, you may not know of the intense legal battles, trademark, and copyright implications that come with “knock-off” brands.
Designers and artisans use copyrights and trademarks to help them protect their creations or brands. While these protections create substantial barriers for possible infringers, the law is not so black-and-white.
What exactly does Trademark protect?
Trademarks offer the best and broadest protections for designers. The words “American Eagle Outfitters,” on top of a storefront is protected, as well as the inverted C’s on a Chanel handbag. The veil of the Trademark Act protects even the unique stitching on a pair of True Religion jeans.
Trademark protection extends to logos, symbols, brand names, packaging, design, and other optional elements of apparel and accessories. However, trademarks do not protect everything. Aesthetically functional pieces are ineligible for trademark protection. This was ruled on in the following case:
In Christian Louboutin v. Yves Saint Laurent, the court ruled that Louboutin owned trademark rights of its red outsoles, because it had acquired a secondary meaning. However, the court held that “despite finding secondary meaning, the appeals court pointed to Louboutin’s failure to show that the secondary meaning of its Red Sole Mark extended to uses in which the sole did not contrast with the upper part of a shoe (i.e., on monochromatic red shoes).” Therefore, Louboutin could trademark its distinctive color, and Yves Saint Laurent could continue to use red soles on monochromatic red shoes.
What exactly does Copyright protect?
Say you have made a blouse, with a unique design related to your company’s brand. Copyright protects that. What about a necklace with a novel pendant you have created? Copyright also protects that.
Copyright protects all original patterns, designs, color arrangements, and unique elements used on clothing, jewelry, and accessories. However, copyright does not extend to the actual clothing itself. So, that blouse we mentioned earlier is not protected, but the design on it is.
Over the past few years, designers have lobbied for greater copyright protections. Many European countries are afforded broad protections, but the United States has not caught up yet. There are several bills proposed by Congress, which would extend to the clothing itself.
For more information, check out the Innovative Design Protection and Piracy Prevention Act.
What about that Knock-Off bag?
We talked about the tools that designers use to help protect their creations. So, how are companies still able to produce knock-off brands that so closely relate to the original? The Supreme Court in 2000, ruled that products or other merchandise that simply copy the distinctive look of a famous brand do not violate United States protection laws.
In order to succeed in a trademark claim, a designer must show that customers may be fooled into thinking that they themselves are buying the brand-name item.
There was huge outcry amongst designers about this case.
Edie Locke, the regional Los Angeles director of Fashion Group International stated that, “Music, books, toys, even pharmaceuticals are protected, why not fashion? Granted, designers have always been knocked off, but to have the higher court say ‘It’s OK guys to knock off’ is surprising and disturbing.”
Perhaps, Cynthia Vincent, who runs her own clothing line, said it best:
“Everything is generated so fast, and trends are so quick. I’m not even talking about the third and fourth tier of designers. These days Calvin Klein is inspired by Prada.”
So, that knock-off bag you are thinking of buying does not infringe on the designer…at least, not yet…