Dear Fashionistas,

As previously mentioned on Thread Conscious, I will show you the many faces of fashion, from the latest style trends to legal issues to “behind the seams” segments with fashion professionals.  Today’s topics cover “fashion law,” involving copyright and  trademark.  Don’t check out yet, because any resulting legal issues could affect you at some point.

Up first: I read on Pink Memo that some old motorcycle club called Hells Angels sued Alexander McQueen for trademark infringement regarding the club’s “winged death head symbol.”  Charmed.

Let me just say this briefly: a trademark is meant to identify a certain good or service with the specific trademark owner, and thus avoid confusion among consumers.  When you see two interlocking C’s, you know you’re getting Chanel, not Gucci.  When you see “MK” you know you’re buying Michael Kors, not Carolina Herrera.  (This is general knowledge, NOT legal advice!  See my Legal Disclaimer Page.)

Now I’ve looked at the Hells Angel mark and a McQueen dress and purse at issue, as seen on Pink Memo, and I’m not exactly buying the Hells Angel claim.  Why?  Because I’m not confused between the trademarks!  When I see the McQueen pieces, I don’t mistakenly think that I’m looking at a product made by Hells Angels.  Yes, McQueen used a graphic of a side view of a skull, like Hell’s Angels, and yes, McQueen used the color red, like Hell’s Angels.  However, there does not appear to be infringing similarities here.

Darlings, how many of us have seen skulls and the color red used in fashion?  Well, unless you’ve been living under a rock all your life, most of us!  And doesn’t red, the natural color of blood, coincide with a theme of skulls and cross bones and what not?  I think so.  Such elements are common among macrabre themes in fashion, pop culture and more, and are hardly unique within the scope of this darker aesthetic.

Unfortunately, it doesn’t matter what any of us thinks, because McQueen settled with Hells Angels and   apparently the McQueen products sold have to be recalled and destroyed.  Yes, destroyed.  So, if you bought one of the allegedly “infringing” McQueen frocks or accessories, you just might have to give it up!

On to the next topic, and I have yet to formulate all my thoughts on this one, so I’m giving you both sides of the argument below and may reserve my comments for a later time.

Introducing: Innovative Design Protection and Piracy Prevention Act (IDPPPA, S.3728)

In short, if passed, this bill would allow for designers to have “fashion copyright protection.”  This could be good or bad, depending on how you look at the situation.

Ron Coleman’s IP Law Blog discusses opposing views about this bill by attorneys Susan Scafidi in New York (supports) and Staci Riordan in Los Angeles (against).  Scafidi states “this bill addresses the needs of emerging designers, offers recognition and protection to all creative fashion designers, brings the U.S. in line with IP law in other fashion design-producing countries, closes a legal loophole related to counterfeiting, and will force former copyists to actually design clothing or at least sign licensing agreements — meaning more jobs for designers and more affordable choices for consumers.”  However, Riordan takes the opposite position:

“This bill, more appropriately called the Destruction of Affordable Fashion Bill, seeks to amend copyright law and will:

• put numerous small businesses that don’t have $400,000 to spend on litigation out of business;
• cause 1.6 jobs to be lost in Los Angeles for every fashion job lost;
• severely disrupt the fashion manufacturing process;
• cause lenders to stop lending;
• increase expediently the work load of the federal judiciary — the court that rules on copyright litigation;
• narrow your choice of clothes; and
• increase the cost of the few items you can buy by at least 30%.”

Wow, talk about polar opposites!  At any rate, it’s really an interesting issue and worth a look.

More about the authors: Scafidi is the author of Counterfeit Chic and Riordan authors the Fashion Law Blog, both of which are very useful resources if you want to read a little about how copyright and trademark law intersect with the fashion industry.  Coleman’s blog is a general IP blog covering trademark, copyright, internet law and free speech.  All really fascinating stuff!  I promise!

Fashionably Yours,

Nik