trademark infringement

trademark infringementIf you don’t follow what’s new on the catwalk, you might not initially link fashion with the concept of intellectual property. For big brands like Gucci, though, the link is obvious – especially when cheaper outlets try to copy their lucrative designs! But is it truly trademark infringement?

Forever 21’s Complaint Against Gucci was No Match for the Luxury Brand’s Counter-Claim of Trademark Infringement

Forever 21 got into hot water last year for being, in their words, “inspired” to mimic a stripe design that closely resembled striping by Gucci. Forever 21 slapped the stripes on a sweater, a bomber jacket, and more … and it didn’t take long for Gucci to notice. Claiming that the green-red-green striping was proprietary, Gucci sent Forever 21 a cease-and-desist letter. Rather than fold, Forever 21 sought legal protection against potential trademark litigation. That prompted Gucci to go even further, responding with counter claims of trademark infringement, trademark dilution, and unfair competition.

Gucci argues that its striping is instantly recognizable as a distinctive Gucci design – and has been for decades. And for now, the court agrees. A US District Judge recently dismissed Forever 21’s claim. The court shot down Forever 21’s claim that the stripes were simply aesthetically functional, and not clearly associated with Gucci. It didn’t help that Forever 21 has been accused of copying luxury designs before, and the court noted its skepticism as it ruled to put Forever’s 21’s claim aside. Since Forever 21 has the right to refile, the case bears watching. You can bet that other luxury brands are watching, too.

What Do You Think? Do You Agree with Gucci – or Forever 21?

Susan Scafidi, founder of the Fashion Law Institute at Fordham, agrees with the court that Forever 21 is in the wrong. She argues that trademarks “serve as source indicators, and protect consumers against confusion.” In other words, they represent the brand and communicate that brand clearly to consumers. In her opinion, Gucci’s stripes are as distinctive as a Nike swoosh or Coca-Cola’s signature curved bottle.

Intellectual property lawyer Robert Allen disagrees! He doubts that Gucci’s claim will hold up for long, arguing that Forever 21 shoppers are not likely to be confused about the origin of the sweater or bomber jacket. It’s more likely that they know they’re not buying an actual Gucci product, but are too pleased by the design and the cheaper price tag to care.

For Other Luxury Brands, This Matters!

So, why is this important? The ruling is clearly a boon for luxury designers who trademark aesthetic details that they feel represent their brand. It may not bode well for knockoff retailers that sell to luxury market wannabes.

In our opinion, it makes sense for Gucci to defend its distinctive design. We feel strongly that artists and designers have the right to protect their product from copycats. The ruling sure won’t help our bottom line, however, when it comes to holiday shopping this year.

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