Fashion law roundup: Gucci v. Guess; Louis Vuitton v. Ly; D&G v. Dolce & Banana; A&F's "unofficial" gay video; Wang slapped hard

Posted by Charles Colman

Oh, is it that time of the week already?  The keen (and unkeen) observers among you have undoubtedly noticed that this writer -- due largely to the demands of his legal practice -- is not able to blog all that frequently.  If you crave more frequent fashion law updates, join the official LAW OF FASHION LinkedIn group, follow LOF on Twitter, "Like" LOF on facebook, add LOF on Google+, repin LOF on Pinterest...


and the like.  Now, down to business.  There's so much fashion law news this week that LAW OF FASHION has arranged it by topic:


Intellectual Property


"Gucci Accuses Guess of Massive Design ‘Knock Off’ Scheme" (Bloomberg Businessweek)

"U.S. District Judge Shira Scheindlin [on Wednesday, March 28th] began conducting a trial without a jury on Gucci’s infringement claim in Manhattan. Gucci, a unit of Paris-based PPR, sued in 2009 claiming that Los Angeles-based Guess was selling items in stores and online with logos that are 'studied imitations of the Gucci trademarks.'  The trademarks include a green and red stripe design, a square G, the designer’s name in flowing script and a diamond pattern with repeating interlocking G’s, according to Gucci’s court filings.  'It’s about a massive, complicated scheme to knock off Gucci’s best-known and iconic designs,' Louis Ederer, Gucci’s lawyer, told the judge today.  The company claims that $221 million worth of Guess products infringed Gucci designs.... The trial is expected to last at least two weeks." 

"Fees, won't you stay" (LIKELIHOOD OF CONFUSION ®)

"[On Thursday, March 29th, the Second Circuit handed down a decidedly pro-trademark owner decision in Louis Vuitton v. Ly USA.]  The defendants were convicted of trafficking in counterfeit [Louis Vuitton] goods, conspiring to do so, and smuggling.  The appealed all the bad things that happened to them in the civil case — massive damages, attorneys’ fees, the usual.  There were two key holdings, both buffeted by extensive and thoughtful discussion.  One was that there’s just about no way the Circuit Court will second-guess a District Court’s refusal to enter a stay of a civil action pending resolution of parallel criminal proceedings, and the court is not shy about saying so....  The second is an important, and more groundbreaking (if unsurprising), decision on an important question: Once the court awarded $3 million in statutory damages, was it allowed to also award over half a million dollars in attorneys’ fees and costs? [The Second Circuit panel] conclude[d] "that an award of attorney’s fees is available under section 1117(a) in 'exceptional' cases even for those plaintiffs who opt to receive statutory damages under section 1117(c)...."

For a refresher on the difference between run-of-the-mill trademark infringement, like that primarily at issue in the Gucci v. Guess face-off, and trademark counterfeiting, revisit this old LAW OF FASHION chestnut.

"Dolce & Gabbana go bananas over Dolce... and Banana" (Telegraph)
"Costume jeweller Mijou Beller has been trading under the name from her seaside location near Cape Town, South Africa, for 12 years, but has incurred the wrath of the Milanese fashion label, Dolce & Gabbana.... Beller has been served with a lawsuit by the Italian brand, even though she has since modified the name of her store - which was unsurprisingly a hit with tourists photographing themselves before her shopfront - to simply, 'Banana.'  [D&G] accuses Beller of 'objectionable conduct' and 'diluting' [its brand.]  'The name Dolce and Banana makes a mockery of the well-known trademark Dolce & Gabbana,' read the complaint, filed to the Cape Town High Court...."


Notice that D&G has emphasized D&B's alleged dilution of its brand, rather than infringement.  To understand why, revisit this recent LAW OF FASHION ® post on Coach's failed dilution argument before the Federal Circuit.

"Where Have I Seen You Before? At Zara, in Midtown, It’s All a Tribute" (NY Times / Critical Shopper)

"ADAPTATIONS, a/k/a blatant knockoffs, have always been a part of fashion, but they used to occur at a more civilized pace....  [At Zara's new flagship store in Midtown,] echoes from the spring 2012 runways are everywhere... red pump with tailfin à la Prada, yup; Pierre Hardyesque contrast clutch, sure; Navajo print in sequins on a miniskirt, mm-hmm. But could those also be next fall’s collections peeping round the bend? Bid a feeble hola to an olive-green military parka with fur hood and snap-out vest inside; inauguration-appropriate sturdy sheath dresses; patchwork-plaid flannel shirts.  [The company's] confusing taxonomy and slipshod customer service clearly don’t matter to trendettes in search of bird prints, flapper fringe and peplums on the cheap. 'Sad Victoria Beckham,' my pal said, fingering one of the last. And then, espying a black ankle-strap wedge: 'Theyskens for Theory.'"

Has Zara been emboldened by the recent goings-on in Louboutin v. YSL (yes, that case), or is it still playing coy until the Second Circuit issues its ruling in the red-hot legal dispute?


"Trademark squatting in China doesn't sit well with U.S. retailers" (L.A. Times)

"The Kardashian sisters don't sell their clothing and perfume in China, and you can't buy authentic J. Crew khakis here.  But both names are already trademarked by Chinese businesspeople looking to profit from American enterprises that want to tap China's booming retail market.   Extortion?  Nope.  It's called 'trademark squatting.'  And it's legal in China, where trademarks generally are awarded to those who are first to register them with government authorities.  If these and other U.S. companies want to use their own names, they probably will have to pay the Chinese holder for the rights...."

Damn "territoriality" principles.  (Discussed here, too.)  Better get in there quick, fashion brands!





And also:



Labor and Employment


"Alexander Wang [Denies] Sweatshop Allegations [in Newly Filed Federal-Court Action]" (Women's Wear Daily)

"Alexander Wang is pushing back against a former employee’s sweatshop allegations.  The fashion house told WWD that Wenyu Lu, who sued the company for poor working conditions at its factory on 386 Broadway here, was fired for bullying his co-workers.  'The claims regarding sweatshop conditions are completely untrue,' said an Alexander Wang spokesman. 'In reality, this case was filed by an individual who was let go by the company as a result of serious harassment issues. We stand by our decision to promote a safe workplace environment for all employees regardless of false claims that may be waged against us in retaliation.'... The lawsuit, which was [refiled in] New York Federal Court on Friday [following a dismissal without prejudice in] Queens County Supreme Court, alleged that Wang violated the Fair Labor Standards Act as well as New York State labor laws covering overtime compensation and minimum wage."

For some reason, the new federal-court complaint in this case (let alone the even newer "First Amended Complaint," filed on March 26th) has been extremely elusive.  So LAW OF FASHION ® finally sucked it up and paid to download the latter document from the court's website.  It's posted here; you're welcome.

"City sues retailer over living wage" (The Santa Fe New Mexican)

"Aéropostale, a clothing store in the Fashion Outlets of Santa Fe, hasn't responded to charges that it isn't paying Santa Fe's 'living wage' -- now the highest in the nation at $10.29 an hour -- so the city is suing the New York City-based chain.... This is only the second time the city has had to litigate its 2002 Living Wage Ordinance.... [The] implementation [of the 'living wage' law] was held up for six months by a lawsuit brought by the Santa Fe Chamber of Commerce and several restaurant and hotel groups [but survived judicial scrutiny.]  The city minimum wage has increased, based on rises in the Consumer Price Index's West Region, almost every year on March 1. [T]his past March 1, the city upped the minimum wage to $10.29 an hour -- a nickel more than San Francisco's minimum wage, the second highest in the nation, at $10.24...."

"Labor Activist Risks Life Speaking Out; Kalpona Akter exposes deadly working conditions in [Bangladesh] factories making US clothes" (ABC News)

A powerful video interview with a fair labor advocate who explains, among other things, how she and other factory workers were jailed for 30 days for protesting their working conditions; each was held in a 2' by 4' cell.  She goes on to explain that by giving this interview, she risks a three-year prison sentence.

This story comes just weeks after the tragic news that three Cambodian factory workers were shot during a peaceful demonstration for better working conditions, which LAW OF FASHION mentioned last week.


And also:




Gender and Sexuality (and IP, and Employment...) 


"Transgender Miss Universe Canada Finalist Jenna Talackova Disqualified From Competition" (HuffPost Style)

"23-year-old Miss Universe Canada finalist [Jenna Talackova] was disqualified from the competition after it was discovered she had undergone sexual reassignment surgery, reports CTV.... According to a statement from Miss Universe Canada, Talackova was disqualified because 'she did not meet the requirements to compete despite having stated otherwise on her entry form. We do, however, respect her goals, determination and wish her the best.'... Talackova told CTV she's 'not giving up' and is consulting a lawyer...."


Given the outfits that tend to show up at Miss [insert anything] pageants, LOF isn't entirely sure this qualifies as a "fashion law" story.  But here at LAW OF FASHION ® (unlike at the Miss Universe pageant), all reasonable doubts are resolved in favor of inclusion.  Incidentally, since Talackova was booted, she has received a "skyrocketing" showing of support from individuals and organizations around the world.  It's not to late for you, too, to do the right thing, by signing this petition in protest of Talackova's disqualification.  Alternatively, your social activism could take the form of not buying pageant owner Donald Trump's new fragrance... which you shouldn't be buying anyway, for many reasons, including the tycoon's penchant for needlessly killing exotic animals.


[UPDATE #1 (4/3/12): "Jenna Talackova, Transgender Miss Universe Contestant, May Compete After All" (HuffPost Style)]


[UPDATE #2 (4/3/12): "Jenna Talackova, Transgender Miss Universe Canada Finalist, Breaks Silence After Learning She May Be Allowed To Compete" (HuffPost Gay Voices)]


[UPDATE #3 (4/9/12)"Jenna Talackova Can Compete, But the Fight Against Trans Injustice Rages On" (HuffPost Gay Voices)]


"Bro Kiss By Shirtless Men Wearing Abercrombie & Fitch Surprises Exactly No One" (Racked)


"Today in Abercrombie & Fitch news, four wrestling-themed 'Webersodes' have appeared on Bruce Weber's Facebook page, explicitly revealing what everyone knew all along: A&F ads are kind of gay.... Though Weber has shot muscly advertising campaigns for Abercrombie for more than ten years—and what little clothing the young men in the videos are wearing are clearly branded with A&F logos—a rep told Shophound that the videos are not part of an official ad campaign. So for the time being, it looks like A&F will just continue to nod and wink at its customers."

This story raises at least two issues -- and probably a great many more than that.  But let's stop and consider just the following questions: 1) Was the video 'unofficially' condoned by the company, in an effort to court gay customers -- perhaps a tiny, little baby step toward greater diversity for a brand known infamous for classism, racism, and general exclusion-wherever-possible -- without alienating its less open-minded customers?  2) If the video was made without any involvement on the company's part, are we looking at a potential trademark (perhaps "false endorsement") dispute -- along with whatever else we might be looking at in this video?




The Workroom Sink




Hmmm... this last story seems somehow familiar...


[This post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities.  Any views expressed in this post or at the linked web pages are those of the writer on a particular date, and should not necessarily be attributed to this writer, his law firm, or its clients.  Neither LAW OF FASHION nor any person or entity associated with it can warrant the thoroughness or accuracy of the content here or at the linked sites.]