Inspiration, Infringement and Lack of Liability: A Story of Supreme Success

By gakselband [May 25th, 2010] 

Supreme Logo

Supreme is a lifestyle/skateboard brand that has managed to spark and hold my interest for many years.  Not only is the brand aesthetically appealing, but the rebellious overtone and history of trademark and copyright infringement is enough to drive any intellectual property student wild. While brands are as litigious as ever to protect their trademarks and copyrights, Supreme seems to take a nonchalant approach to appropriation. Much of the time, the brand successfully avoids liability. Other times, items such as the Chicago Blackhawks hockey jersey, aptly called a “rip”, stay unreleased forever due to cease and desist orders.

At the risk of sounding out of step, a brand like Supreme manages to open my eyes to a side of fashion infringement that just doesn’t seem all that bad. Sometimes, it actually creates a unique product suitable for fashionistas and collectors alike. Where else can you get a Louis Vuitton monogram skateboard? Nowhere! The Supreme Vuitton collection was pulled from shelves shortly after release due to a cease and desist letter from Louis Vuitton.

Supreme started out in NYC in 1994 as a lifestyle/skateboard brand and later expanded to include three stores in Japan and one in Los Angeles. In addition to releasing clothing to hordes of consumers, in a style reminiscent of an old Russian bread line, the brand has also released countless other products bearing its logo. These items include boxing gloves, jewelry, nunchuks and, as many joke nowadays, the occasional skateboard deck or wheels. However, apart from a series of collaborative efforts with bigger brands, Supreme has appropriated the symbols, designs, and images of other brands without permission thereby seemingly infringing upon trademarks and copyrights. A good example of the practice stems down to Supreme’s use of a little red tab on many of its items:

The ubiquitous Levi Strauss red tab is on the left and the Supreme version of the same oxford shirt is on the right. Aside from the modern fit and details on the Supreme version, a reasonable person may not be able to distinguish one from the other. Levi’s, an industry leader in trademark infringement cases, would probably have a very valid cause of action if it were to sue Supreme. Yet, unlike other victims of Levi’s lawsuits, Supreme has been let off the hook.

So how has Supreme managed to avoid liability for so long? Why has Supreme been excused for trademark and copyright infringement while countless other brands like Steve Madden and Ed Hardy bear the brunt of legal action? While it may be difficult to provide a definitive answer, the reasons could be a combination of many different factors. When pursuing a claim, a company must conduct a cost-benefit analysis. The cost of litigation is the driving factor in the determination; therefore, a company must be fairly certain that their trademark is in need of protection and that the chance of success is likely. In addition, a company wants to consider the impact that the action will have on their reputation. Sometimes, when it appears that a bigger one is victimizing a smaller company, a consumer backlash against the bigger company may occur. Most important, while it may appear that a claim exists, in reality, current law may lack the necessary protection and remedy.

A short perusal of Supreme’s offerings over the years may help explain some of the disparity between perceived legal claims and actual law. Hopefully, it can also demonstrate some of the unique products that flow from appropriation and serve as an argument against monopolies in the fashion industry. For example:

Don’t these two t-shirts just scream trademark infringement? Maybe even copyright infringement? After all, Supreme“borrowed”two identifiable company logos, made some snazzy t-shirts, and brought in a profit. In a court, the infringement claim would have to pass a standard of “likelihood of confusion” which includes, but is not limited to, factors such as defendant’s intent, evidence of actual confusion and proximity of the goods. Fortunately for Supreme, the salt and battery markets are a far cry from skateboarding, and the likelihood of consumer confusion would be low. A claim of trademark dilution, which requires the mark to be “famous,” can be supported through blurring or tarnishment.  Blurring is where the power of the mark is weakened through identification with dissimilar goods and tarnishment occurs when the mark is cast in an unflattering light. Furthermore, a copyright protects graphics applied to t-shirts, so both brands may have that claim as well. The trademark dilution and copyright claims would serve as perfect examples of when a company must consider the worth in pursuing legal recourse.  Regardless, from a consumer perspective, I love a good logo. I love it even more when it’s on a t-shirt.  Could Morton Salt or Eveready Batteries be expected to make t-shirts out of their trademarked logos?  Probably not. In the end though, the consumer wins.

What about a claim for trade dress in the following example?

Polo Ralph Lauren has served as Supreme’s biggest inspiration since the beginning, but is this a case of tribute or just plain trademark infringement? Trade dress refers to a product’s overall appearance and its total image presented to consumers, either of the product itself or its packaging. Unfortunately for Polo, but fortunately for Supreme, trademark law in the U.S does not protect clothing designs. Again, from a consumer perspective, sometimes one brand is able to recreate a product and make it superior to the original. Better quality, materials, and overall fit. Should a consumer be denied a choice between two interpretations of the same product?

Last but not least, Supreme even managed to avoid the wrath of the Hells Angels Motorcycle Club (something that even Hunter S. Thompson couldn’t do!) In March 2007, the club filed a suit against Walt Disney for using the name and logo without permission in the movie “Wild Hogs.” So what makes Supreme the exception here? I would be willing to bet that if the Hells Angels actually had a choice in who uses their trademark, they would pick a gritty NYC skateboard company over Disney any day. Considering the hype surrounding Supreme’s products, many brands could only benefit from such a tribute.

Luckily, as this was being written, Supreme itself went face to face with Shorty Pop, a brand that has been appropriating Supreme’s ideas for a few years now.

How did they handle it? Supreme bought out Shorty Pop for a meager $20,000.

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