Some lawsuits make one wonder about the people who filed them. Louis Vuitton thinks Hyundai infringed on their trademark during a Super Bowl commercial.

Evidently, Louis Vuitton lacks a sense of humor over the minimal use of their bold and gold trademark on a basketball that appeared for all of about one second in a Super Bowl commercial. Really people, you can’t be serious. The courts these days are already clogged with legitimate and serious lawsuits. This is not a serious or legitimate lawsuit. In fact, it belongs in a sentence with the term frivolous.

“My feeling about it is that this is trademark law going too far. It’s probably true that nobody has suffered more at the hands of trademark infringers than Louis Vuitton, but that doesn’t justify a complete loss of sense of humor,” indicated David Erikson, a Los Angeles fashion law attorney.

Louis Vuitton, which of course is based in Paris, filed this less than substantial lawsuit in a Manhattan court recently and is seeking – if you can believe this – triple damages, punitive damages, a halt to the alleged infringement, and other remedies. All this for a one second or less glimpse of a basketball covered in a pattern of initials that resembled Louis Vuitton’s trademark. If you watch the commercial yourself, you will probably have to play it at least twice before you see what the flap is all about.

“And more importantly, this flap doesn’t justify turning trademark law on its head. The purpose of trademark law is to protect the public against unscrupulous sellers who palm their goods off as made by others, who have earned good will with the public. This commercial is just good fun, and doesn’t confuse anybody,” added Erikson.

While trademark infringement can be serious business, this particular situation hardly fits the bill for either infringement or being serious. Even if over 106 million people saw this controversial ad, they did not immediately jump to the conclusion that Hyundai was infringing on Louis Vuitton’s famous (or infamous) trademark or that Louis Vuitton somehow endorsed Hyundai. “It would be hard to make that very same joke (referring to the basketball), or at least make it as well, without using a reference to the Louis Vuitton logo. By this lawsuit, Louis Vuitton diminishes the public domain of discourse and humor,” Erikson stated.
The commercial was just that, a commercial in good fun. However, the lawsuit papers indicate that Louis Vuitton doesn’t know the meaning of that term, in that they indicate the use of their trademark on a basketball in the Super Bowl commercial by Hyundai “is likely to dilute the distinctiveness and tarnish the reputation of the LVM marks.” Perhaps, with all due respect, someone needs to get a grip on reality here.
Evidently, a spokesperson for Hyundai has not yet made a comment. Not much wonder.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

The squint test isn’t related to having your eyes tested. It’s an idea that may protect fashion designers.

What on earth does a squint test and fashion design have to do with one another? Good question and one that has one of those kinds of “iffy” answers people love to hate. So what’s the (fashion) scoop here?

It seems the fashion knockoff trade is in high gear and rolling out very close copies of things like Michelle Obama’s inauguration gown. The culprits are Forever 21 and ABS and they’re busy making a lot of money by copying fashion designer’s originals and selling for a much lower price. It’s really easy to do these days thanks to digital cameras and the Internet.

There is usually only a lag time of a few weeks after the original debuts before copies hit the market. “I’ve actually had the opportunity to sue ABS on behalf of the fashion line Libertine. Interesting case, and it highlights what the problem is with the knockoff industry,” said David Erikson, a Los Angeles fashion law attorney.

There are other companies who get involved in rushing things to market, but they’re not strictly copying the original designer. Rather, they are creating clothes “inspired” by the original, which means they’re creating not blatant knockoffs but rather creations that are noticeably different from the original. In the US, both of these activities, the straight knockoff and inspired by designs creations, are legal.

They are legal because US copyright law says that clothing is a useful article, and as such, is not legally protected; not like movies, music and books. “However, this might be a stance heading for a revision if Diane von Furstenberg and the Council of Fashion Designers of America have anything to do with it. The idea? To treat fashion design a bit like other protected areas of intellectual property,” Erikson outlined.

Treating fashion design as intellectual property would protect original designs from copies that are substantially similar. This is the usual standard for other copyright protected creative works. Congress looked at the idea, but didn’t pass the first fashion design Bill because it lumped inspired-by and knockoff makers together.

The Bill is back with more teeth and might make it into law. The new version narrows the ban to “closely and substantially similar” designs; a very big difference from the first Bill. Fashion design law should protect originality but not limit creativity. The idea here then is to allow the inspired by designers and put a halt to the knockoffs.

Here is where the Squint Test kicks in. A proposal outlined in a recent article by C. Scott Hemphill and Jeannie Suk suggests that if a buyer has to squint to see any difference between a copy and the original, then copyright protection needs to kick in at this point. It’s the copycat designers that need to stop ripping off original designs and fooling customers they’re offering an original for less. The test is simple and elegant.

“For years, high-end designers have been pushing for something like copyright protection. The idea never flies, partly because of power and politics, and the fact that people like the price of knockoffs. If we protected fashion design the same way screen plays are protected against those who copy the play too closely, we might be outlawing too much. Chanel shouldn’t have too broad a monopoly,” indicated Erikson. Recent legislation proposed by the designers has acknowledged this by seeking more limited protection than traditional copyright.

A lot of people rather like this basic idea, although knockoff designers ABS and Forever 21 aren’t too enthused about it. The only problem with the proposal might be a practical one. “If the big design houses get anything close to copyright protection, they will push the envelope by bringing lawsuits even against the companies making ‘inspired-by’ pieces. They won’t be chasing just the big knockoff companies either. They’ll go after smaller designers who might want to rip off the latest runway pieces,” outlined David Erikson, a Los Angeles fashion law attorney.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

Medical marijuana dispensaries aren’t new per se, but trying to regulate them is proving to be a contentious issue.

Los Angeles found that out the hard way, mostly because the politicians just couldn’t get their act together to agree on anything workable. It’s not that difficult an issue to deal with, but in the rush to protect the general populace from dens of inequity, the city fathers came up with a really ridiculous set of regulations to keep the medical marijuana dispensaries a specified distance from schools, homes, etc.

“On the surface, this might have been a smart move. However, by the time the city planners got done sorting out where these dispensaries could go, there was no place, unless it was way out of the city in isolated industrial areas where no one would go. The proposal was initially for a 1,000 foot buffer between the dispensaries and other sensitive sites. To say that idea flopped would be a major understatement,” said David Erikson, attorney at law, in Los Angeles, California.

Not noted to be shrinking violets about this issue, since it does mean revenue for the city from the 137 existing dispensaries and those yet to open, the City Council will consider a few other buffer zone options, ranging from a 200 foot buffer to a 500 foot buffer instead. While no one is certain what the outcome will ultimately be, the facts are that the dispensaries have to be “someplace.” Even with the adjusted buffers, at least 132 dispensaries would have to move. There won’t be a lot of happy campers when council is done with their deliberating.

“Meanwhile, medical marijuana patients are caught right smack dab in the middle of this political battle with city council on one side of the fence and the city attorney and district attorney on the other. The point is though that there are hundreds of these types of dispensaries that have been in the city for years, operating without a problem. Now however, it’s a problem because people have decided it’s time to regulate them, but they don’t have a coherent plan,” Erikson pointed out.

“In what amounts to a comedy of errors, LA city council imposed a ban on any new dispensaries opening. Well, they thought that was what they were doing two years ago. In reality they worded the ban in such an awkward manner that people opened them anyway under a hardship exception,” commented Erikson. “Over eight hundred dispensaries were looking for approval to set up and were rejected. Problem is a state judge has called the ban unconstitutional and invalidated it. This is quite the legal mess taking shape on the horizon,” he added.

And speaking of legal conundrums, the new city attorney insists that selling cannabis for cash is illegal under state law. That means dispensaries are operating illegally and have to shut down or be prosecuted. When it rains, it pours. The city hasn’t seen the last of that issue yet, as other cities in the state have well regulated medical marijuana dispensaries and the Attorney General has issued guidelines for their legal operation.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.

It seems to be open season on shoe knockoff lawsuits. The latest in a long string being filed is against Paris Hilton.

While there are a number of rather hotly debated shoe knockoff lawsuits, they do have one thing in common (mostly) and that is a designer is suing someone else for copying their original shoe design.  “Will the suits be successful? Tough question and the answer isn’t clear in any of the lawsuits going on right now, largely because only one of them – the Paris Hilton suit – has a design patent involved. The rest of the designer knockoff lawsuits don’t,” said David Erikson, attorney at law, in Los Angeles, California.

The other suits making headlines are Balenciaga v. Madden (a popular guy to sue lately) and Danner v. Rag and Bone. If you’ve spent any time surfing the Internet lately, you’ll have already had a gander at some pretty gutsy and blatant knockoffs. It really takes chutzpah to tackle a big name designer and rip off their original creations. “While the buying public may appreciate the knockoffs, the designer views it as an infringement of their creation and intellectual property,” explained Erikson.

Unfortunately, it is very difficult for designers who have had their territory poached to come up with legal theories to fight back. Seems like it’s the same old – same old arguments that don’t tend to hold too much water when they get to court, unless of course the knocked off designer has a design patent, or it is a truly signature piece that the public associates with the original designer. Then we’re talking about a whole other can of worms.

“However, back to Paris Hilton who raised the ire of Brooke Hollow, doing business under the name of Gwyneth Shoes, by supposedly knocking off a heart-shaped shoe sock that is evidently under patent number D579,642 and went even further by infringing on trademark rights because the pink heart shoe sock is considered to be a source and brand identifier for Gwyneth shoes,” Erikson outlined.

To add insult to injury, Hilton claimed on her website that she personally chose all the design elements of her shoes and in wanting to make sure it was comfortable, added the heart-shaped comfort pad. She further added that the pad would allow the wearer to dance all night long. She must be kidding. Those are killer stilettos.

“Let’s put this heart-shaped shoe sock into perspective. This is referred to as a design element. A design patent is a patent granted on the ornamental design of a functional item. While that may sound like it’s quite clear, and that the heart-shaped shoe sock is the ornamental design and the shoe is the functional item, it is nowhere near being that clear cut when the issue gets to court,” said Erikson.

Generally speaking, clothing and shoe designers don’t get design patents because they take forever and a day, are ridiculously expensive and in most cases, apparel design patent applications are rejected because they are not considered to be “new” in the purest sense. “Design patents tend to make sense only when there is a very original design element, not a retool or rework of a past theme, that the designer is clearly intending to use every season,” stated David Erikson, attorney at law, in Los Angeles, California.

Here’s a good question to consider: “Is the heart-shaped shoe sock very original and is it new in the pure sense?” Patent or not, this may be a tough question to answer come court time. Secondary meaning is hard to prove in litigation and even more so when it comes to shoes and clothing. However, having said that, if Brooke Hollow does have a valid design patent, the presumption of validity might result in a different outcome in this case.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.