On the Cutting Edge

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

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

Disappearing Fan Bingbing

Chinese actress Fan Bingbing has mysteriously disappeared after being accused of tax evasion -- and she's started disappearing from her fashion sponsorships as well. Do fashion companies have a responsibility to keep her as the face of their brands? How should fashion brands adapt to China's political culture? Associate Director spoke with the New York Times about ethics, strategy, and the important Chinese market:
Jeff Trexler, associate director of the Fashion Law Institute at Fordham University, said displays of conspicuous wealth are seen as an affront to the message being promoted by the Chinese government: that everyone in the country is rising upward on an economic wave. “The more wealthy your spokespeople are, the greater the risk is,” he said. Companies also worry that if they upset the Chinese government by continuing to promote someone who has fallen from favor, as Ms. Fan appears to have, they might suffer in a variety of ways, from taxes audits to obstacles opening new stores.
What does this mean for marketing strategy? That was a central theme of our longer discussion with the Times -- and that will be the topic of a more extensive analysis to follow!

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