Am I being infringed upon?

If you have not read my previous blog post then you may not know that I have a certain kind of disdain for trademark infringers, counterfeiters and bootleggers who purposefully copy and exploit another company’s brand without visually applying some kind of satiric artful meaning behind their brand, a la Andy Warhol style.

Learning the elements of trademark infringement and copyright laws is ever so important and given my own dreams and aspirations in fashion, entertainment and law it behooves me to stay current on the rules and regulations that could hurt my brand by creating a legal liability.  

Ever since the Lanham Act and Trademark Counterfeiting Act of 1984 trademark infringement has been a useful weapon in the fight against counterfeiters, counterfeiting channels and those who choose to infringe upon or dilute another company's brand. There have been a few seminal cases within the fashion industry in recent months that may affect my future endeavors. Three examples of current trademark infringement court cases within the apparel industry is the Navajo Nation, The et al v. Urban Outfitters, Inc. et al, Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., and Christian Louboutin v. Yves Saint Laurent America.

Two out of the three cases mentioned above deal entirely with brand recognition and trademark infringement while the other case deals with websites that aid and allow ones brand to be infringed upon. Navajo Nation, The et al v. Urban Outfitters, Inc. et al, case has been a long standing battle, the Navajo Nation does not appreciate the use of its name to promote Urban Outfitters’ goods and services. Essentially, saying, “The fame or reputation of the Navajo name and marks is such that, when defendant uses the `Navajo’ and `Navaho’ marks with its goods and services, a connection with the Navajo Nation is falsely presumed. I would be inclined to agree. I personally feel the use of their name to promote their brand is tactless and exploitive, especially if you are not compensating the Navajo Nation. However, I feel Pendleton Wooden Mills would be a better example of the use of Native American inspired fashion apparel that doesn’t infringe on a particular Native American nation.

The Christian Louboutin v. Yves Saint Laurent America case is a good example of a company who happened to successfully (possibly fraudulently) trademark a color mark at the expense of the USPTO. Louboutin “Red Bottom” high heels are a staple of luxury and couture in women’s fashion.  Here, Louboutin is arguing that their signature red bottom shoes have established secondary meaning within the fashion world and Yves Saint Laurent has infringed upon their trademark “red bottom” shoes by designing a pair of shoes that also has red bottoms. Louboutin preliminary injunction preventing Yves Saint Laurent for selling those particular line of shoes with red bottoms was denied because, “in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the court finds that Louboutin is unlikely to be able to prove that its red outside brand is entitled to trademark protection, even if it has gained enough public recognition in the market to have acquired secondary meaning.” In my opinion, I would also be incline to agree with the court in this matter because although clever and creative, adding red to the bottom of the sole of shoes should not be trademark because it is a color used within fashion apparel, imagine how this could affect the fashion apparel if the fashion industry would be apparel to trademark a color as a brand. Louboutin should consider a signature within the color brand.

In Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., the court held, “that a web-hosting company that owned and operated servers was liable for contributory copyright and trademark infringement when it failed to take steps to curtail alleged infringement committed by Chinese websites that used its servers.” This is a good example of how not to get caught up in promoting trademark infringement. This case tells companies that they should take proper precautious in preventing any and every association with trademark and copyright infringers. Business owners beware.

As a future entrepreneur in the fashion apparel industry these cases draw important parallels because of subject of trademark and copyright infringement but interpretations of trademark laws generate different outcomes. It allows me to take notes of the dos and don’ts trademarking and protecting ones brand.