On the Cutting Edge

Immoral Trademarks Ban is FUCT

In a ruling that was not at all a surprise given its earlier decision allowing the registration offensive marks, the Supreme Court has found that the longstanding prohibition on registering immoral and scandalous trademarks violates the First Amendment. The victory by fashion brand FUCT success is a sign of streetwear's rapidly growing cultural influence. Not long ago, streetwear synonymous with ASBOs (UK - anti-social behavior orders), danger, and illegality in racially charged trope. Now, street fashion is restyling the law. fuct-brunetti

Immoral Trademarks Ban is FUCT

In a ruling that was not at all a surprise given its earlier decision allowing the registration offensive marks, the Supreme Court has found that the longstanding prohibition on registering immoral and scandalous trademarks violates the First Amendment. The victory by fashion brand FUCT success is a sign of streetwear's rapidly growing cultural influence. Not long ago, streetwear synonymous with ASBOs (UK - anti-social behavior orders), danger, and illegality in racially charged trope. Now, street fashion is restyling the law. fuct-brunetti

Breaking: Gucci & Forever 21 Settle Stripes Case

Forever 21 and Gucci have settled their lawsuit over the Gucci Web trademarks - the famous Gucci Blue-Red-Blue and Green-Red-Green stripes. The high-profile companies' struggle over stripes created ripples throughout the fashion industry, especially among companies accustomed to sending cease-and-desist letters and negotiating private settlements with fast fashion's usual suspects.   F21's preemptive dash to court via a declaratory judgment action didn't strip Gucci of its stripes, but it will have a lingering effect on brand protection programs, causing trademark owners to re-consider whether sending a C&D is risk-free. Disclosure: Professor Scafidi was an expert for Gucci in this case. gucci-forever21-settlement

Converse Wins
Trademark Appeal

Today the Federal Circuit issued an opinion in Converse v. International Trade Commission, a trademark case involving the midsole design of Chuck Taylor All Stars.  The decision was a major victor for Converse, which will now have another opportunity to prove that Skechers, New Balance, and the owners of the Ash brand -- the remaining intervenors in the case -- infringed the mark and to defend its validity. The opinion is also significant for trade dress in general, clarifying that claimants must demonstrate the existence of secondary meaning before the first use in each case of infringement, and also that the relevant period for analyzing secondary meaning is five years prior to registration or prior to first infringing use, whichever is earlier.  In addition, the Federal Circuit adds unsolicited media coverage to its list of factors to consider in assessing secondary meaning and changes the way it treats the factors of length, degree, and exclusivity of use, noting in passing that each of the 11 circuit courts has a slightly different list.  SCOTUS, are you listening? Overall, Converse's attempt to protect its classic Chucks is still a marathon rather than a sprint, but the company has pulled ahead of its competitors for now. Below: the Federal Circuit's ruling and the Fashion Law Institute's amicus brief! converse-Opinion.10-30-2018-federal-circuit
Converse-amici

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