IDPPPA Reintroduced in Senate

In the midst of all the NYFW fabulosity, Senator Charles Schumer has brought fashion law and the issue of copyright protection for fashion to the forefront by reintroducing the IDPPPA, now retitled as IDPA, in the Senate after it has been stalled for an extensive period in the House. As discussed in a previous post, the bill aims to expand copyright laws to include fashion design after the American Apparel & Footwear Association and the Council of Fashion Designers of America forged a compromise on the issue in August 2010.

The dormancy period prompted many to believe that the success of the bill would be unlikely. And with Congress's truncated schedule due to the election, the bill's prospects continue to remain uncertain. Until then, the CFDA continues to campaign against counterfeiting with its Design Manifesto, which it began distributing at NYFW and via mail. “Originality is the ability to think independently and creatively,” said Steven Kolb, CEO of the CFDA, in a letter that accompanies the manifesto mailing. “We hope our Design Manifesto serves as a positive influence for all working designers!” We here at TFG couldn't agree more and hope the continued efforts of those pushing for copyright protection for original fashion works will pay off.

LVMH Countersuing Hermès

The fashion law world is on fire this week. In our previous post, we covered Hermès International's annoucement about filing a claim against LVMH in July for insider trading. Yesterday, LVMH responded to the announcement by revealing it will file a suit against Hermès for “slander, blackmail and unfair competition.” LVMH went on to state that “[b]y filing its complaint, Hermès seeks to bypass the appropriate AMF channels without waiting for the result of the official enquiry [sic] and without determining the extent of the AMF’s findings to date. In addition, the filing carries serious and unfounded accusations about market failings."

AMF is the official stock market regulator and in November 2010, it launched an investigation to determine if LVMH respected market rules. The investigation is still ongoing. The luxury conglomerate said it awaited the results of the probe “with complete peace of mind” and was confident the AMF would find it did no wrong. LVMH stated that it “ has no doubt that the inquiry will determine that the Hermès allegations are false and serve no other purpose than to slander and unlawfully undermine another firm in the same industry."

Victory for Christian Louboutin in Red Sole Case

Looks like those of us in fashion law are going to have a great start to fashion week. A New York federal court of appeals just ruled that Christian Louboutin is entitled to trademark protection for its red-sole shoes, except when the shoe itself is red. The holding allows Chrisitan Louboutin to protect itself against YSL's use of the red-sole.

Last year, Christian Louboutin had filed a lawsuit in a New York federal court against YSL to have the judge cease production of a line pumps it had also produced with a red sole. YSL filed a counterclaim, alleging that Louboutin's 2008 trademark registration for the red-sole was not valid. Last August, a federal court judge denied that request because it believed Christian Louboutin did not have a valid trademark altogether. Now, with Louboutin's victory, the case will now go back to the lower court, which will have to review it with the appeal's court ruling in mind. This was a well-earned win for Louboutin. Furthermore, the question of whether color can be trademarkable has been answered for all IP lawyers in fashion.

Street Artist Claiming Zara Stole Designs

Patrick Waldo, a New York-based street artist, claims that international retail chain Zara copied his iconic graffiti art in a T-shirt. Waldo made a name for himself by drawing the word "moustache" on the faces of New York City subway ads in a distinct, swirly font until he was caught and arrested in 2011.

Apparently the street artist's trademark tagging became so recognizable, that everyone on the Internet took notice when Zara produced a line of T-shirts with the same design. "There's no doubt in my mind that Zarastole my design," Waldo told the Huffington Post. "It's not as if I came up with the idea and then kept it to myself. I put my moustache on thousands of posters all over New York City for well over a year. They got press before I was arrested." Waldo is apparently seeking money from the fast-fashion retailer as credit for the design. 

Apparently this isn't the first time Zara took an artist's work and turned it into a sartorial piece. In 2010, a French blogger claimed the chain stole her photos and turned them into T-shirts. In 2007, another street artist claimed Zara also ripped off his designs. For our non-lawyer readers, street artists do have intellectual property rights. For example, if a studio is planning to shoot a movie in a street location whose background contains a wall with a major art design, their in-house counsel is responsible for obtaining a valid license from the artist to have the design appear in the scene. The street artist does have a valid claim for copyright infringement if their design is taken without permission. And for a company as big as Zara, it would not have been difficult nor expensive to reach out to Waldo and other street artists to obtain a valid license to reproduce their designs on T-shirts. 

Fashionista Lawyer Sues Forever 21 Over A Penny

For the most part, I am proud of becoming a lawyer. And then there are times when lawyerly stereotypes remind me why so many people don't like us. This lawsuit may be one of those times. Carolyn Kellman, a commercial collections lawyer who recetly was profiled by the Miami Herald for her high fashion sense, is suing Forever 21 over a penny. Oh, that's not a typo. A penny. According to the complaint filed by Kevin Love of Criden & Love, Kellman noticed that after returning a pair of black denim pants, she had received a penny less than what she had originally paid. 

Kellman’s suit seeks class-action status for two groups of Forever 21′s alleged fashion victims over the last five years: those who were charged one cent more, and those who were refunded one cent less. According toAbove the Law, to meet the $15,000 threshold for her suit, Kellman is counting on 750,000 customers to come forward and join the suit. While Forever 21 isn't exactly our favorite retailer given their history of notoriously copying fashion designers, we aren't sure we can side with Kellman on this one either. But perhaps Kellman might be on to something. Perhaps Forever 21 is trying to get away with penny-pinching scheme that might be worthy of a class-action suit. What do you think?