UPDATE: Russian Appeals Court Affirms Christian Louboutin’s Trademark Ruling

Louboutin’s fashionable lipstick line was inspired by Queen Nefertiti and the Art Deco movement.

Louboutin’s lipstick line was inspired by Queen Nefertiti and the Art Deco movement.

French luxury fashion house, Christian Louboutin, filed an action in Moscow Commercial Court against Moscow-based InterPrestige Group, InterLuxParfum, Image Parfum and Klementina, seeking to collect $170,000, according to a legal news source. Although the type of action has not been identified, the report says InterPrestige Group and InterLuxParfum, mainly sale bulk perfume and beauty products, Image Parfum operates an online perfume store, and Klementina mainly deals with textile sales.

In 2012, Christian Louboutin announced its collaborative partnership with Batallure Beauty LLC to enter the luxury beauty market under the trademark Christian Louboutin Beauté creating products across a number of classifications. So far, the house has launched its nail polish and lipstick collections.

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‘WOCT’: Brian, Christopher Lichtenberg Case Dismissed

 

Alex & Chloe Ballin Tee

Alex & Chloe Ballin Tee

 

Designer Brian Lichtenberg is the owner of the most talked about fashion brand, Brian Lichtenberg LLC, that rides the coattails of the some of the world’s most renowned fashion houses such as Chanel(Brianel), Balmain (Ballin), Gucci(Bucci) and Hermès (Homiès). Brian brought a $100M action against his brother Christopher Lichtenberg for trademark infringement, unfair competition, defamation and other claims, for allegedly stealing his design “Ballin,” a play on “Balmain” and selling them to retailers for them less through his own label, Alex & Chloe in late January or early February 2013, before Brian’s “Ballin” products came to market.

On July 25, 2014, Judge Dean D. Pregerson of the Central District of California granted Lichtenberg and his company motion for a preliminary injunction in part and denied in part. Lichtenberg and his company did not demonstrate a likelihood of success on the merits of their trade dress infringement and dilution claims. However, they did satisfy unfair competition, intentional interference, trade secrets, and defamation claims.

Therefore, Judge Pregerson ordered Christopher Lichtenberg and others to restrain from “the use of pictures celebrities wearing the “Ballin” design “in any manner that would lead others to believe that such persons are wearing”; using his sibling’s customer, distributor, or manufacturer lists; assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities; and contacting persons or entities with contracts for the purchase or sale of “Ballin” designs or who are in the business of purchasing or selling products similar to [Brian Lichtenberg] designs.See Court Ruling

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Settled: Ralph Lauren’s Designers Accused Of Shamelessly Copying ‘Martin Designs’

Chris Martin is the founder of Last Match Studios and is also a designer of original apparel graphics who licenses his works to well-known brands such as Levi’s, Lucky Brands, and Vans. Unfortunately, in this matter, Ralph Lauren took the liberty of using his designs without permission.

Martin claims after his original two-dimensional designs namely “Death Valley”, “Dirty Devil”, “Thunderbird”, “Triton” and “Wall of Death” also known as the “Martin Designs” were publicly shared and viewable on his website; Ralph Lauren’s designers shamelessly copied the designs for Ralph Lauren’s Denim & Supply line of graphic tees.  “The comparison makes apparent that the elements, composition, colors, arrangement, layout, and appearance of the designs at issue are substantially similar”, the complaint asserts.

All images courtesy of Chris Martin’s attorney.

Martin contends in his complaint, which was filed in Central District of California that Ralph Lauren, Macy’s and other defendants and in concert with each other, “willfully, intentionally, and knowingly infringed the “Martin Designs” by creating, making, and/or developing directly infringing and/or derivative works from the designs and by producing, distributing and/or selling garments which infringe the “Martin Designs” through a nationwide network of retail stores, catalogues and through [e-commerce] websites”.

So what is a “derivative work”? It is derived from one or more preëxisting works. Derivative works include art reproductions in which a work may be recast, transformed, or adapted.  A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. See 17 USC § 101

Plaintiff alleges the defendants, and each of them has committed copyright infringement with actual or constructive knowledge of [Martin’s’] rights, and/or in blatant disregard for [Martin’s] rights”, the complaint asserts. “[And] due to defendants’ acts of copyright infringement, each of them has obtained direct and indirect profits from their infringement of the “Martin Designs”. Therefore, “Martin says he has sustained and will continue to sustain substantially and irreparable harm, loss and damage to his copyright”, the complaint further alleges.

Chris Martin seeks damages, defendants’ accounts for all gains and profits, infringing items be destroyed, that defendants be enjoined and restrained during the pendency of this case, and afterwards an injunction to block defendants from acquiring, copying, manufacturing, distributing, and selling clothing that infringe the “Martin Designs” and a demand for a jury trial. See Martin v Ralph Lauren, Macy’s

Do Ralph Lauren’s unlicensed graphic designs qualify to fall under copyright infringement?  According to The Professional Association for Design, the derivative must be “substantially similar” to the original “artistic expression” and it must be adequate so that the “average person” would conclude that the derivative work was based on or adapted from the original work. What do you think? Reported October 19, 2015

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Burberry, Lacoste, Tommy Hilfiger— Physical Marketplaces—Trademark Infringements—Injunctions


Almost five years to date, after the Court of Justice of the European Union issued a preliminary ruling in L’Oreal v eBay that operators of internet marketplaces may be forced to put an end to infringement of intellectual property rights committed by users and take measures to prevent the same, the CJEU issued another preliminary ruling in Tommy Hilfiger Licensing LLC and Others v Delta Center that mirrors the ruling, only this time for operators of physical marketplaces.

In Hilfiger, Delta Center, a tenant of the historic marketplace Pražská tržnice (Prague market halls) sublets to market traders in the marketplace. Manufacturers and distributors, including Burberry, Lacoste, and Tommy Hilfiger learned that counterfeits of their goods were sold in the Prague market halls and sought a court order from the Městský soud v Praze (City Court, Prague) to stop Delta Center from renting sales spaces to the traders who infringed their intellectual property rights.

Article 11 of the Intellectual Property Rights Enforcement Directive 2004/48/EC provides for injunctions against intermediaries whose services are used by a third party to infringe intellectual property rights. The brands contended that similar to operators of internet marketplaces covered by the L’Oreal decision, the operators of physical marketplaces may, under the directive, should be held liable.

The Prague City Court dismissed the request for the injunction and the Vrchní soud v Praze (Prague High Court) upheld the decision, according to the judgment.

The brands appealed to the Supreme Court of the Czech Republic (Nejvyšší soud), which noticed the Czech national law Article 4(3) of Law No 221/2006 corresponded to the third sentence of Article 11 of the IPRE Directive 2004/84/EC. The Court was of the opinion that the matter would have to be resolved by the clarification of Article 11 provided by the judgment in L’Oreal, therefore it stayed the proceedings and asked the CJEU for a preliminary ruling on, “[W]hether it’s possible to order the operator of a physical marketplace to put an end to trademark related infringements committed by market traders and to take measures seeking to prevent new infringements.”

The High Court stated, “The fact that the provision of sales points concerns on an online marketplace or physical marketplace such as market halls are irrelevant because the scope of the directive is not limited to electronic commerce.” Therefore, the CJEU ruled on July 7, 2016, that “[t]he third sentence of Article 11 of the [IPRE] Directive 2004/84/EC must be interpreted as meaning that the tenant of market halls who sublets the various sales points situated in those halls to market traders, some of whom use their pitches in order to sell counterfeit branded products falls within the concept of “an intermediary whose services are being used by a third party to infringe an intellectual property right” within the meaning of that provision.”

Further, the CJEU ruled that the conditions for an injunction issued by a judicial authority against an intermediary who provides a service of letting sales in market halls are identical to those applicable to injunctions addressed to intermediaries in an online marketplace. To be precise, injunctions must be “equitable and proportionate”, must not be “excessively expensive” and must not “create barriers to legitimate trade.” Neither can the intermediary be forced to exercise “general and permanent oversight over its customers.”  The court added, by contrast, “the intermediary may be forced to take measures, which contribute to avoiding new infringements of the same nature by the same marketer.” However, the injunctions must ensure a “fair balance between the protection of intellectual property and the absence of obstacles to legitimate trade.”

Take Note:

A reference for a preliminary ruling allows national courts and tribunals of Member States to ask for an interpretation of EU law (to clarify a point of interpretation in order to apply it correctly) or check the validity of EU acts adopted by institutions, bodies, offices or agencies of the Union.

In this matter, the Supreme Court of the Czech Republic (Nejvyšší soud) asked the CJEU to interpret the third sentence of Article 11 of the Intellectual Property Rights Enforcement Directive or the Enforcement Directive 2004/84/EC. However, the CJEU does not decide the outcome of the dispute. It is for the Supreme Court of the Czech Republic to resolve the case in accordance with the CJEU’s decision, which is generally binding on other national courts or tribunals.

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Abercrombie Claims Former CMO,Gap Violates Trade Secrets Act

 

Abercrombie-Fitch-2016-Spring-Mens-Campaign-007

Alex Libby for Abercrombie & Fitch 2016 Spring Men’s Campaign-Fresh Direction Brand

Abercrombie and Fitch claim Craig Brommers, the former Senior Vice President of Marketing and a former member of the Abercrombie’s Leadership Team was “provided, helped develop and/or had access to almost all of Abercrombie’s confidential business information and trade secrets”

The international retailer, which operates brand names, Abercrombie & Fitch, Hollister, and [A]bercrombie kids believe Brommers (who was in charge of marketing for all three brands) took trade secrets and a plethora of other confidential business information to use in his new role at The Gap— Chief Marketing Officer—similar if not identical to his former Abercrombie position.

“As publicly reported, Gap hired Brommers to become [CMO] of the Gap brand and to aggressively turn around Gap’s declining profits and shares. Brommers was hired to fill the position that sat vacant for one year and that Gap had previously claimed was being eliminated.” It was also reported that the Gap brand lost its “brand identity” and that its brand has struggle to find its way with consumers.”

“Abercrombie provided Brommers voluminous amounts of “confidential business information; consumer and competitor research; and studies and other information concerning its brand and the brands of its competitors, including Gap, in the specialty retail market space,” Abercrombie asserts in its complaint filed in the Court of Common Pleas, Franklin County, Ohio. “This information will provide an unfair and unlawful advantage to Gap if Brommers violates its agreement.”

On January 15, 2016, Brommers submitted his resignation and advised Abercrombie he would join the Gap, which was in direct violation of his Executive Agreement that contained Non-Compete and Non-Solicitation provisions he signed on May 14, 2015, that prevents Brommers from working for twelve specific identified competitors, including The Gap, for twelve months post employment.

By virtue of Brommers’ high-level employment, he had access to competitively sensitive business information including Abercrombie’s long-term company-wide brand position project, which is a complete corporate makeover of the A&F and Hollister brands that “defines how A&F interfaces with customers, competes with other speciality retailers like Gap, and hold itself out to public,” the complaint asserts. “The brand position initiative, (which Brommers was the executive leader) will have an impact on Abercrombie’s strategies through the entirety of 2016 and beyond.”

“The above information constitutes confidential business information and trade secrets,” the complaint alleges. “None of the above information is publicly available and Abercrombie took steps to maintain its confidentiality, including limiting distribution to employees with a business need to know, password-protecting confidential information, and obtaining non-competition and confidentiality agreements from its key executives like Brommers.”

A&F further alleges in violation of Brommers’ 2015 agreement, in tortious interference with that agreement and the business relationship memorialized, and in violation of Ohio’s Trade Secret Act, the Gap offered and Brommers accepted employment beginning prior to the expiration of Brommers’ twelve-month non-competition period.

A&F seeks an order to enjoin Brommers from working with for the Gap and its subsidiaries for twelve months from the date of his resignation, from using or disclosing and confidential information or trade secrets acquired during his time at Abercrombie, and the Gap cannot employ, consult with or connect with Brommers for twelve months from the date of his resignation.

In addition, A&F seeks an order of specific performance of the agreement and prohibit violations of the Ohio Trade Secrets Act, damages from Brommers and Gap, attorneys’ fees, trial by jury and other relief.

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Fashion Week Seeks Preliminary Injunction Against CFDA,WME-IMG

New York based Fashion Week Inc., with federally registered trademarks for —”NYFW”, “New York Fashion Week”, “NYFW The Runway Shows”, and “New York Fashion Week The Runway Shows”—filed a trademark infringement suit against Council of Fashion Designers of America and WME-IMG LLC for using New York Fashion Week (NYFW).

According to the record entry, after a conference on June 29, 2016, Judge John G. Koeltl of the Manhattan Federal District Court denied a temporary restraining order,but a preliminary injunction hearing is set for August 4, 2016, a month before NYFW The Shows.

Earlier this year, Council of Fashion Designers of America gave up its fight for New York Fashion Week trademark against Fashion Week Inc.

More to come…

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Versace Claims Versace Infringes Trademark

Versace-Spring-2016-Campaign-Fashion-Tom-Lorenzo-Site-9.jpg

Gianni Versace S.p.A. and Versace USA Inc. claims Versace 19.69 Abbigliamento Sportivo S.R.L., (founded by Alessandro Versace in 2001);  V1969 Versace SMO LLC, V1969 Versace HG LLC, V1969 USA LLC and Theofanis Papadas violate the Versace trademark by using the name without permission.

According to the  Northern California Record, which obtained a copy of the complaint filed in the San Fransico Federal District Court,Versace and Versace allege their trademark is used by the defendants in order to confuse the purchasing public that the goods are the same. Therefore, they have “suffered damages to the reputation and business”.

Versace and Versace seek damages, attorneys’ fees, destruction of goods and other relief. More to come…

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