Ed Hardy's Work Is Now Popular With Pirates

According the New York Times, the infamous tattoo artist's famous designs, style, and even his name are all being targeted by fashion pirates looking to make a quick buck.

The trademark name is actually pulling in more than $700 million dollars a year. This is more than enough incentive for pirates to actually use search engine optimization to their advantage and create dummy websites that mimic Ed Hardy's website:

"Backers of the Ed Hardy name find themselves in a constant battle with counterfeiters who quickly and easily create fake Ed Hardy Web sites, almost indistinguishable from the real sites, and then try to manipulate Google’s search and advertising systems. The end goal is to make sure people hunting for Ed Hardy gear online find the fake goods first, lining the pockets of pirates, largely based in China."

Mr. Hardy was actually quoted by the New York Times as saying, “In the early days in the city, I might do one tattoo and then wait three days to do another. I think it’s funny and totally surreal to see what’s happened.”

It will be interesting to see what happens. In this case, it seems that counterfeiters are actually copying written content from the actual Ed Hardy website word for word. Recent case law has shown that use of a rival's trademark protected phrase as a keyword does not infringe on their mark, but if the ad actually displayed as a featured result has the protected phrase, then there is trademark infringement. According to Google's AdWords and AdSense policy, it is the advertiser's responsibility for the keywords they choose to generate advertisements and the text that they choose to use in those advertisements.

Let's see if there will be some lawsuits filed on the heels of this article!

Jimmy Choo Shoppers Need Coaching

Jimmy Choo is doing a collaboration with H&M. I have written about this collaboration before, but this is the first time I have heard about how shoppers are being prepped for the big day the collection drops in stores!


Racked has put together an article that details how Jimmy Choo and H&M are prepping their shoppers to be courteous: "Please wait in line."

How interesting! While I typically love Jimmy Choo, some of the shoes seem more "working girl" than I would like. What do you think?

H&M Is Rocking Its Collaborations

H&M has announced that Sonia Rykiel will be working on a lingerie line for the fast fashion chain.

According to WWD:

The collection is to be launched Dec. 5 in 1,500 H&M stores worldwide, and also at Rykiel boutiques — the first time a guest designer for H&M will do so. The French firm counts 44 boutiques worldwide, along with 52 shop-in-shops.

In another first, the collaboration with Rykiel will continue into the spring season, with a knitwear line for women and girls, accompanied by accessories. This second collection will be launched in around 250 H&M stores on Feb. 20.

“We wanted something different,” H&M creative adviser Margareta van den Bosch told WWD. “Sonia Rykiel is very Parisian, feminine and playful, so it was an ideal choice.”

I am excited! Jimmy Choo is doing a line for H&M that will be unveiled this November. Perhaps this will entice more people to do a little bit more holiday shopping (or just shopping)?

Forever 21 Case Ends in Mistrial

It seems that the culmination of the trial we have all been watching ended in a little bit of a letdown a few days back. While I actually knew about the trial earlier, I have been busy with non blogging things.

Here is what the rest of you may have missed (from The WWD Blog):

"After two years of legal wrangling, days of testimony and thousands of pages of court documents, Trovata and Forever 21 are back at the starting line because of a mistrial over allegations the cheap-chic retailer knowingly copied Trovata's designs.
The conclusion of the trial, which had the potential to clarify intellectual property rights in a time when knockoffs of runway looks often find their way into specialty chains before the originals, didn't bring closure, but Trovata accomplished what design houses with bigger budgets and bigger names could not. It forced $1.7 billion Forever 21 into court to answer questions about mimicking looks from designer collections.

And the game isn't over. Trovata has indicated it will seek a new trial.

The juror on the panel of six men and two women who blocked a Trovata win spoke with conviction after the mistrial. Stephen Sharp said design elements in Trovata garments weren't widely known and, therefore, any similar merchandise in Forever 21 stores didn't confuse the public about the brand.

'The jury is placed under difficult circumstances to be ad hoc fashion experts and the law is somewhat vague and contradictory,' he said. 'There is no impartial body analogous to the patent office. All of these things made it a difficult exercise to go through.'"

I wish Trovata all the best. This trial indicates the absolute necessity to have at least some minimal protection for designers. It is because U.S. law is so opposed to designers' rights (because of the fear that it will inhibit growth in the market) that designers such as Trovata have to argue under trade dress (which may not be the most convincing argument).

Legal non-protection of clothing design and fashion is a longstanding tradition of United States in spite of the highly lucrative business of the apparel industry: “Yet, in a world where the creative works of musicians, artists, and filmmakers are so highly protected that even a child can be used for sharing music over the Internet, the United States does not see the need to protect the designs that a fashion designer creates.” Julie P. Tsai, Fashioning Protection: A Note On The Protection of Fashion Designs In the United States, 9 Lewis & Clark L. Rev. 447, 448 (2005). This has been problematic since so many other creative workers in other industries such as the music industry have the rights of intellectual property protection. Why is it so difficult for designers to protect their creative efforts in the United States?

It has been difficult for fashion designers to protect their designs since it is difficult to categorize their intellectual property. If they try to protect their work with patents, they run the risk of a costly, lengthy process that may or may not be accepted. It is also very difficult for designs to fulfill all of the requirements for a patent. Patents are required to be new, useful and non obvious. Most designers can admit that while their designs have a degree of unique creativity, they also borrow from other designs and most items of fashion are not new. It is also very hard to contend that the actual unique designs created by these designers are actually useful in the way most items that are protected by utility patents are. Another important factor to consider is that fashion collections created by designers work on such a rotational seasonal calendar. Fashion is constantly changing and entails more ambiguity than the clear cut world patents would provide.

Hence, the previous quote of Oscar Wilde in my introductory post. How do we categorize the work of fashion designers? Should this work even be protected since fashion is cyclical?

My focus of my posts this week will be Counterfeits. Are counterfeits really that bad? How do counterfeits affect commerce?

Is Fashion An Art Form That Merits IP Rights?

"Fashion is a form of ugliness so intolerable that we have to alter it every six months."
-Oscar Wilde

"The internet is for....PORN!"
-Avenue Q

This is a blog that is devoted to the study of fashion, the internet, and evolution of both in the realm of intellectual property in the United States. It is surprising that there are so many forms of protection for other forms of creation, but there is very little protection for fashion designers. Even boat hulls get more intellectual property protection for goodness sake! I hope to post informative, thought provoking posts about the topic since its a constantly evolving legal field.