As fashion’s faces gather in Auckland for Fashion Week 2014, Simpson Grierson’s Claire Foggo and Janelle Cooke consider recent fashion disputes and their lessons for fashionistas.
• Clear your brands first
Taylor Swift’s affiliation with 13 (her lucky number) is well known and spawned her range of “Lucky 13” merchandise. However, Californian clothing company Blue Sphere, which owns a trade mark for “Lucky 13”, has filed US infringement proceedings against Swift. Blue Sphere’s 20 plus years of trading using the “Lucky 13” name gives a solid argument for trade confusion.
Always check that no one else has rights in your latest catch phrase or slogan before you put it on a T-shirt, no matter how famous you are.
• Beware of social media
Australian swimwear designer Leah Madden created a Facebook photograph album showing her swimwear next to Seafolly swimwear titled “The most sincere form of flattery” – hinting that her designs had been copied. It later became apparent that Seafolly had released its designs before Madden, and Seafolly successfully claimed defamation.
Make sure your social media content and comments are accurate and not misleading. Even posts on personal accounts may be subject to Fair Trading legislation and advertising standards. Social media should be treated like any other advertising and used appropriately.
• Keep accurate design records
Lacoste recently successfully defended an infringement action brought in New Zealand by Singapore-based apparel manufacturer/retailer Crocodile, as Crocodile failed to show copyright ownership of its crocodile logo.
Designers should be aware that copyright subsists in original design drawings. The end product is a result of that copyright, but does not prove copyright ownership. Keep accurate and up-to-date records of all designs for logos, labels and garments including the original drawings and patterns themselves, along with details of who owns the copyright (particularly for collaborations).
Below: Lacoste vs Crocodile drawings. Image credit
• Beware pop-up shops and counterfeit imports
Who doesn’t love a sale of parallel imported cosmetics at knock-down prices? While these products may be legitimate parallel imports (genuine items sourced from overseas), beware items marketed, particularly online or in “pop-up” shops, as “parallel imports” at unbelievable prices – they may be fakes and could be dangerous. We know we wouldn’t want to take the risk of using fake GHD straighteners, MAC makeup or Android phones.
Here in Auckland, the police took action against the operators of pop-up stores selling counterfeit True Religion jeans. As conned purchasers of the sub-standard knock-offs will attest, if the price seems too good to be true, it may be counterfeit.
Beware of fake MAC! Pictured below: genuine MAC makeup as photographed by Megan Robinson of threadnz.com today. See the MAC A Novel Romance review here.
• Trade marks are not always enough
Thomas Pink and Victoria’s Secret both secured UK trade mark registrations for their PINK logos. But when Victoria’s Secret opened a PINK store in London, Thomas Pink established consumer confusion.
Trade mark registrations may not protect you from liability for passing off, or misleading or confusing consumers.
Careful planning and protection of your IP rights is crucial in the fashion industry, and may help you to avoid making the ultimate fashion faux pas – ending up in court.
By Claire Foggo and Janelle Cooke
Images all credited with links from sources.
22 August 2014
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