It’s extremely difficult to fight fashion knockoffs in court. For reasons that puzzle non-lawyers (and some lawyers), copyright law doesn’t protect against copying fashion design. Soon, I’ll do a post about the Designer Piracy Protection Act, proposed legislation that’s floundering around Congress which would provide for some copyright-ish protection for apparel design. But there’s also a trend (get it?) towards using “trade dress” law as a weapon. Trade dress law is closely related to trademark law, which protects against rivals using your company’s name or logo to pass of their products as your own, or to confuse into thinking thinking their goods or services are related to yours.
Trade dress law mainly protects packaging–packaging that the public comes to associate with a particular company. But without any better weapon, fashion designers are using trade dress to protect against their imitators. That’s possible because the notion of packaging (which is what trade dress law protects) is quite vague. In one of the leading cases, the Supreme Court held that the décor of a chain of Mexican restaurants was a type of trade dress. Other cases have held that trade dress encompasses a product’s “total look and feel.”
Well, that was quite enough for fashion lawyers to jump in and claim essentially that an article of clothing is one big piece of packaging. And if that’s true, and if the public comes to associate that packaging with a particular line, then trade dress law should work in fighting knockoffs. It only works for one a line’s signature styles.
Later I’ll write about some trade dress cases I’ve brought against imitation fashion. But this post is about the latest example of the trend: Alexander McQueen’s recent lawsuit against Steve Madden for a particularly egregious shoe knockoff. You can see pictures in the formal lawsuit documents, which you can download here. But suffice to say, its a pretty blatant and exact rip-off. The thing to notice about the case is this: McQueen’s lawyers have to go to great lengths to describe the boot design as one that the public has come to associate with his brand (in the way they do a trademark). Otherwise, Madden would be free to copy. McQueen lawyers do this by talking about branding, promotion, press, etc. Here’s what the attorneys write:
“The Faithful Bootie Trade Dress is, in and of itself, highly distinctive, and has been so recognized by consumers and the fashion trade. In addition, as a result of the uninterrupted, and continuing, promotion and sale of the “Faithful Bootie” shoe, and the widespread media attention that has been devoted to the “Faithful Bootie” shoe, including photographs of celebrities such as Lindsay Lohan, Mary-Kate Olsen and Rihanna wearing the “Faithful Bootie” shoe, the Faithful Bootie Trade Dress has acquired distinctiveness, and, accordingly, has developed a strong secondary meaning among consumers and the trade, immediately identifying AMQ as the exclusive source of products bearing the Faithful Bootie Trade Dress, and signifying goodwill of incalculable value.”
Unfortunately, fashion designers who have been knocked off often can’t make this kind of claim. And even here, its probably a bit of a stretch to say the public associates this particular show with Alexander McQueen. Again, it’s a lot easier when what is copied is a signature style.