In early January, Lululemon Athletica lost their appeal to the TTAB over the registration of the wave design shown below.
The TTAB, affirming the decision of the Examining Attorney, held that the wave design was merely an ornamental decoration and that the public would not perceive the applicant’s mark as an indicator of source. The TTAB stated that such a mark could only warrant trademark registration if the applicant could show the mark had inherent or acquired distinctiveness, or that the applicant has used or registered the design in a non-ornamental manner for other goods or services.
The International Trademark Association, a group of major fashion and consumer product brands, launched an anticounterfeiting campaign to raise awareness among teens about the detrimental effects that counterfeits have on the global economy and on brand owners, as well as the potential dangers to consumers’ health.
WWD reported that the INTA’s new campaign, dubbed “Unreal,” emphasizes how social media, including Facebook, Twitter, and YouTube, could be used to reach a target audience of 14- to 18-year-olds.
Because counterfeit items are readily available in many parts of the country, it is not surprising that teenagers buy them without realizing the economic and social consequences of their purchases. It is doubtful that a teenage girl has child labor or trademark infringement on her mind when she rummages through the fake Fendi wallets on Canal street in Manhattan or illegally downloads a song on the Internet.
“These are folks that are obviously the next generation of purchasers,” said INTA President Gregg Marazzo of Estee Lauder. “Even now they have significant purchasing power.” The goal of INTA’s Unreal campaign is to educate teens about the low quality and unreliability of counterfeits while also emphasizing the harmful social effects, including child labor, organized crime, and negative health impacts.
Alan Drewsen, executive director of INTA, said, “It is our hope that this information will influence their decision the next time they are approached by a site or vendor selling counterfeit goods.”
Anyone who has walked into a Guess store in the past four years has probably noticed that the company’s handbags resemble the iconic Gucci pattern. Sure, both brands start with the letter “G,” but does that really give Guess the right to use a trademark that is strikingly similar to the luxury brand?
According to a federal judge in Manhattan, the answer is no. On May 21, 2012, WWD reported that Gucci won its trademark battle against Guess Inc., but Gucci did not receive the damage award that it was expecting. Gucci claimed that it suffered $221 million in damages, but it was only awarded $4.7 million in combined damages from Guess and its footwear licensee Marc Fisher Footwear. U.S. District Court Judge Shira Scheindlin wrote that Gucci had proven its dilution claims under the Lanham Act, which is the primary federal trademark statute in the
United States, and limited Guess’ use of the Quattro G pattern in brown and beige colorways. However, Scheindlin rejected Gucci’s counterfeiting claim, noting “courts have uniformly restricted trademark counterfeiting claims to those situations where entire products have been copied stitch-for-stitch.”
In an eloquent twist, Scheindlin quoted Oscar Wilde, who described fashion as “a form of ugliness so intolerable that we have to alter it every six months.” According to WWD, Scheindlin wrote, “With the instant disputes now resolved, and with Gucci’s entitlement to the relief noted above, it is my hope that this ugliness will be limited to the runway and shopping floor, rather than spilling over into the courts.”
In January Burberry filed a complaint against a group of Chinese internet counterfeiters for use of 22 distinct types of goods bearing Burberry trademarks. Defendants, owners of websites such as yesburberryvision.com and buyburberry.com, not only failed to appear in court but they also failed to answer Burberry’s complaint resulting in an award of $100 million to Burberry as well as any money held by Paypal Inc. Burberry was also awarded a permanent injunction transfering ownership of the domain names to them allowing them to prevent others from doing business with the defendants.
Will.I.Am, the lead male artist in the popular pop band the Black Eye Peas, is being sued by a clothing company operating under the name I.Am Clothing for $2 million for allegedly backing out of a contract which he signed with them in 2010. The Cut reports that the contract held that Will.I.Am promised to design and market the clothing through 2016. However, Will.I.Am maintains that the contract has expired.
According to WWD, United States Customs and Border Protection officials have seized a shipment of counterfeit perfume bearing labels under the Estée Lauder Cos. Inc. trademark. Authorities claim that the counterfeit perfume shipment included approximately 5,000 bottles valued at more than $344,000. According to officials, the counterfeit shipment was intercepted on January 24th at the Port of Houston and included thousands of perfume bottles bearing the Flirt and Sensuous labels owned by Estée Lauder.
According to WWD, Swatch has revealed the larger than life sums involved in its current litigation with Tiffany and Co. over their now terminated cooperation agreement. This has brought a dark cloud over the entire industry that is currently participating in the Baselworld watch and jewelry fair.
WWD reports that the two parties had signed a 20-year cooperation agreement back in December 2007, under which Swatch was to design, manufacture and distribute Tiffany & Co. watches worldwide. Swatch is claiming that Tiffany used “systematic efforts to block and delay the development of the business,” and Tiffany is claiming that Swatch “failed to provide appropriate distribution for Tiffany branded watches in the luxury space” and did not adhere to obligations regarding management of the brand and product design. The agreement was terminated in September 2011 by Swatch Group.
It’s always in style to obey New York State labor laws, especially when you’re a famed designer like Alexander Wang. In early March 2012, 56-year-old Wenyu Lu, Wang’s former employee, sued the designer and his brother, Dennis Wang, for allegedly making him work 16-hour days without overtime.
A spokeswoman for the fashion brand told WWD, “The company takes its obligations to comply with the law very seriously, including the relevant wage and hour regulations, the payment of overtime to eligible employees and having a safe working environment for all of our employees. We will vehemently defend any allegations to the contrary.”
Wenyu Lu claims that he and more than 15 other employees were forced to work in an unventilated, windowless 200-square-foot room, located in Chinatown at 386 Broadway.
Lu’s attorney has stated that roughly 30 of Wang’s former co-workers have been added to the case and are each demanding $50 million.
Lu claims that he has suffered an eye injury and kidney stones because he was forced to work 84 hours a week. He also alleges that he passed out at his station after working 25 hours without a break. Lu’s lawyer, Ming Hai, claims that Lu was fired on February 16, 2012 after applying for worker’s compensation for his work-related injuries.
“Bad labor conditions are everywhere in the Asian garment community. It’s horrible,” said Hai, noting that there are more than 20 garment factories in Chinatown.
According to WWD, most factory owners tend to settle disputes for fear of bad press. But Wang might be able to argue that New York State’s employment at will doctrine enables him to terminate an employee at any time for any reason. However, this will depend on what is written in the contract between Wang and his employees.
Typically, the employment at will doctrine only applies when an employee is hired for an indefinite term. Even where there is a written contract for a definite time period, however, other contractual provisions might render the employment relationship terminable at-will. For example, if Lu’s employment contract provides that either party could terminate the contract by giving notice to the other party, this could arguably enable Wang to fire Lu for any reason.
Although New York State supports the policy that employers should be free to make their own business judgments without court interference, there are many exceptions to the employment at will doctrine.
For instance, it is a violation to terminate employees for discriminatory reasons or because those employees exercised their rights, including filing for worker’s compensation.
Even if the contract between Wang and Lu enables Wang to fire him without cause, Wang does not have a right to fire Lu because he applied for worker’s compensation. Because Wang’s employees are also suing him for breach of agreement and unjust enrichment, he will not be able to use the employment at will doctrine as a shield to block every claim against him.
According to WWD, a Chinese court has ruled that a China-based clothing maker is legally allowed to use the words “Chivas Regal” on its manufactured apparel. This recent trademark battle follows the lost appeal made by Hermès to the China Trademark Appeal Board a few weeks ago. According to state media, Hermès failed in its attempt to register the Chinese version of its name, Ai Ma Shi in pinyin, because a Chinese company, the Dafeng Garment Co. of Guangdong, had already done so. Apparently, Chinese speakers refer to Hermès by that name and Hermès argued that therefore they should be allowed to register it, but the trademark board disagreed. These two cases are bringing to light the growing intricacies of branding in the Chinese market.
According to WWD, François-Henri Pinault shot back today against accusations that his luxury group supports plagiarism at a press conference following the publication of PPR’s 2011 results. Pinault was addressing the accusations Louboutin made to French daily Libération, where Louboutin compared PPR to counterfeiters and claimed the group was trying to destroy his independent label. Pinault responded to the accusations by indicating his confidence that Yves Saint Laurent would win the right to continue selling shoes with red soles in the ongoing case against Christian Louboutin. According to the PPR chairman and chief executive officer, “We won the first proceedings in quite precise, clear terms and I am therefore very confident with regard to this case, even if I regret it, because these are two great houses and I think we have better things to do than to fight in court over a question of color.”