Good morning everyone. Weather is getting nicer, the situation seems to be improving and we hope for a good month of May. On today’s news:
Have you heard of the Open COVID Pledge?
The “Open COVID Pledge” is an initiative supported by many tech giants where the participating organisations pledge to make their intellectual property available free of charge for use in support of solving the current pandemic. Companies such as Amazon, Facebook, Intel or Microsoft have released patents for their use worldwide by researchers, scientists and others who are actively working in the fight against the virus. Creative Commons is also backing up the project and has been actively working with legal experts to draft the pledge and the required licences.
We applaud this initiative!
Victoria Beckham in a trade mark battle in Australia
Over the past 2 years, the ex-Spice Girl has been actively trying to oppose the registration of 2 trade marks using the initials “VB” for use on cosmetics. Indeed, according to Beckham, this will likely give rise to confusion amongst consumers given that Beckham has been using the “VB” trade mark for apparel, accessories and cosmetics (she has a cosmetics line in collaboration with Estée Lauder) worldwide, including in Australia.
Recently, the Australian trademark office rejected her opposition since it considered that Beckham failed to provide sufficient evidence. The examiner considered that although the trade marks are similar and used for similar goods, the risk of confusion is lessened by the fact that most of the promotion for Beckham’s cosmetics is done under her own name or under the name of Estée Lauder. In addition, although it is undeniable that Beckham has acquired a significant reputation in the fields of apparel and accessories, it doesn’t seem to be the case in the field of cosmetics in Australia. Finally, Beckham failed to prove bad faith of the Australian company when filing for registration of “VB”.
This decision is now under appeal. We will keep you updated. What do you think?
Ugg vs. Steve Madden: the battle of the fluffy shoe
Regardless of your personal style, this is a case of alleged design infringement. UGG’s parent company is filing a complaint against Madden for trade dress infringement, unfair competition and design infringement due to its fluffy sandal. Bellow the evidence.
(the first picture is Madden’s slipper; the second image is Ugg’s original sandal)
UGG claims trade dress infringement based on the fact that the design of the “UGG FluffYeah” slide is protected as trade dress (the overall image of the slide, including its shape, size and configuration has acquired the source-identifying function usually associated to “traditional” trade marks). By copying UGG’s original model, Madden has been exploiting UGG’s goodwill and reputation as well as deceiving and confusing consumers as to the origin of the shoe (slipper, sandal, slide).
In addition, the design that UGG holds over the appearance of the slide has also been violated by Madden’s product, despite the “patent pending” (yes, designs in the US are called design patents) notice that UGG includes on its products.
We will definitely keep you as this fluff case evolves.
Kawhi Leonard vs. Nike
The Klaw logo is usually identified with NBA player Kawhi Leonard as a reference to his big hands. According to Leonard, he invented the logo back in 2009. He, apparently, shared his design with Nike in 2011 after signing an endorsement deal with the company. Although from there Nike has been using and reshaping the logo, Leonard claims that he retained the final say. After Nike and Leonard parted ways in 2018, Leonard sought a court declaration that he was the sole author of the logo and that Nike’s behaviour was fraudulent, since the company registered the logo in its name before the US Copyright Office (there is no copyright registration office in Europe).
Nike fought back and filed for copyright infringement, breach of contract and fraud. According to Nike, although it is true that Leonard shared with them its design back in 2011, the final logo created by Nike is sufficiently different and evolved from the original one. Nike is quoting an interview that Leonard gave in 2014, where he stated that “I came up with the idea of incorporating my initials in this logo. I drew up the rough draft, sent it over and they (Jordan Brand) made it perfect. I give the Jordan Brand team all the credit because I’m no artist at all.” Here are the two drawings in question:
The District Court of Oregon has now ruled over the ownership of the design: it belongs to Nike. According to the judge, the two logos are different and distinct designs. This means that for the time being and unless a different decision is reached in appeal, Leonard cannot license the design to his new sponsors.
Fashion vs. traditional knowledge (and copyright)
MyTheresa is a famous website known for selling luxury items (apparel and accessories). The website is being sued by the Sealaska Heritage Institute, a non-profit established to perpetuate and enhance the Tlingit, Haida and Tsimshian cultures (Native American groups). According to Sealaska, MyTheresa is offering for sale a sweatshirt that copies a copyright protected pattern (created by an Alaska native resident and of which Sealaska exclusive licensee) as well as a specific and unique style of weaving and pattern (Alaska’s native handicrafts are protected under the “Unfair trade practices and consumer protection Act).
(on the left, Sealaska’s design; on the right, the allegedly infringing sweater)
We will keep you updated on any developments.
This is all for this week! See you next week! In the meantime, be safe and healthy.
- FaceTime photoshoots: authorship and ownership – The Fashion Law - https://www.thefashionlaw.com/as-facetime-photoshoots-find-favor-in-fashion-what-does-that-mean-for-authorship-and-ownership/
- Publication date
- 28 April 2020
- Executive Agency for Small and Medium-sized Enterprises