Copy + Paste

COPY + PASTE

Walking the Line Between Inspiration and the Unlawful Replication of Luxury Shoes Aja N. Diamond • March 2018 Final Project Presentation

P

resentation lan

Dissecting the Phenomenon Defining Luxury Footwear Shoe Obsession Footwear Brand Hierarchy Design Replication Debate Competing Legal Principles Aquazzura v. Ivanka Trump

A COMPLEX, NON-LINEAR SOCIAL PHENOMENON

Human experience, interest and emotion Points of view of a socially constructed reality Unearthing hidden social patterns through constant comparison Cautious of preconceived notions

LUXURY DEFINED Craftsmanship.

Exclusivity.

Quality Materials.

Heritage.

SHOE OBSESSION

The “Carrie Bradshaw” Effect

Prominence of Three Shoe Ateliers Luxury Shoes Become Relatable Shoes Become First Choice

FOOTWEAR BRAND HIERARCHY

Christian Louboutin Jimmy Choo Manolo Blahnik Sophia Webster Nicholas Kirkwood Roger Vivier Brian Atwood Aquazzura Yves Saint Laurent Chanel Gucci Givenchy Valentino Louis Vuitton Prada AlaĂŻa

Elite Brands

Non-Elite Brands

Gianvito Rossi

SCHUTZ

$675

$170

STEVE MADDEN

STEVE MADDEN Crushing Rhinestone Boot

Non-Elite Brands

$199.95 YSL Niki Swarovski Crystal Boot $10K

DEBATING DESIGN REPLICATION

“Fashion should slip “Fashion should The slip out your hands. out The veryyour ideahands. of very idea ofseasonal protecting protecting seasonal arts is childish.

One arts is childish.

One should not bother to should protectnot thatbother whichto protect which dies thethat minute it dies the minute it was born.” was born.”

Fashion Icon Coco Chanel Fashion Icon Coco Chanel

Manolo Blahnik Hangisi Pump, $995 Audrey Brooke Bella Pump, $59.99

“For some unknown reason, style piracy is treated more indulgently than much lesser offenses involving deprivation of one's rights and property.”

Law Professors Kal Raustiala and Christopher Sprigman

ANTITRUST

UNFAIR COMPETITION TRADEMARK

Competing Legal Principles

Trademarks

Gucci ace leather sneaker with GRG Stripe trademark Burberry archive scarf print silk shirt with Check trademark

The Power of the Logo

“You didn’t just think that all those repeated logos were just aesthetic choices, did you?”

Law Professor Susan Scafidi

Legal Precedent

Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc., 2012 “We see no reason why a single-color mark in the specific context of the fashion industry could not acquire secondary meaning―and therefore serve as a brand or source identifier―if it is used so consistently and prominently by a particular designer that it becomes a symbol, ‘the primary significance’ of which is ‘to identify the source of the product rather than the product itself’.”

“Louboutin has created an identifying mark firmly associated with his brand which, ‘to those in the know,’ ‘instantly’ denotes his shoes’ source.”

YSL

Christian Louboutin

Gucci America, Inc. v. Guess?, Inc. et al., 2012

Legal Precedent

“I conclude as a matter of law that the defendants’ use of stripes causes a likelihood of confusion with respect to’ certain SKUs. “Considering all the factors – especially the clear evidence of intentional copying, the substantially identical appearance of the marks, and the degree of recognition that the GRG Stripe has as a Gucci identifier – I conclude that there is a strong likelihood of dilution by blurring caused by Guess’s use of the GRG Stripe.”

The greater the distance in competitive proximity the more difficult it is to prove infringement.

Guess Gucci

Wild Thing $785

Aquazzura v. Ivanka Trump

Hettie $130

Mapping Aquazzura’s Legal Options Replication of a Registered or Unregistered Trademark?

Famous Trademark Blurred or Tarnished?

Similar Overall Appearance of Shoes?

Source Confusion because of Intrinsic or Secondary Meaning

Yes Trademark Dilution

No Source Confusion

No Trademark Dilution Unfair Competition Violation

Trade Dress Infringement

No Trademark, Trade Dress or Unfair Competition Violation

Court of Public Opinion carolinegallegos Just shameful. @ivankatrump

aristogeitos Actually, you've gone and copied a

cidneynicole@lindabrown4727 fashion may not seem a

design from the 1960s, and her shoes are not that

big deal to some but if a writer had his work stolen or

close to yours. All designers are thieves.

manipulated that is called plagiarism and it’s wrong. A

kabars47 Come on they are fringes, so if you make

shoe might seem trivial but if he worked hard on this

heels with fringes you are stealing!

design and someone else comes in with a look a like [sic]

angmorth ridiculous. There are so

and profits from it then how is it any different from

many shoe designs on this page that I

plagiarism and any less wrong. Hard work is hard work

have seen for years, tell me. Are you

no matter the value of the results and those end results

paying

are the right of the worker and in this case the designer.

designers of the open toe bootie or

foodapprecianado Outrageous. It's the same shoe, only

gladiator sandals? Get over yourself.

without craftsmanship or integrity.

royalties

to

the

original

What Does This Mean for the U.S. Luxury Footwear Industry?

Capturing market share requires diligent product and brand distinction Relationships with influencers is highly important Replication can be offensive and beneficial at the same time Seeking protective IP status with executive branch agencies can be prudent because replication is foreseeable Pursuing litigation is a complex yet probably a necessary decision to protect signature designs

THANK YOU

CONTENT SOURCES Banay, S. (2005, December 19). Most expensive women's shoes. Retrieved from https://www.forbes.com/2005/12/16/expensive-womens-shoes-cx_sb_1219feat_ls.html#4637ba0b55a9 Barnett, J. (2005, October). Shopping for Gucci on Canal Street: Reflections on status consumption, intellectual property, and the incentive thesis. Virginia Law Review, 91(6), 1381-1423.

Raustiala, K., & Sprigman, C. J. (2012). The knockoff economy: how imitation sparks innovation. Oxford [U.K.]; New York: Oxford University Press.

The devil wears trademark: how the fashion industry has expanded trademark doctrine to its detriment. (January 01, 2014). Harvard Law Review, 127, 3, 995-1016.

Wander, D. (2010). Trendsetting: Emerging opportunities for the legal protection of fashion designs. Rutgers Law Journal, 42, 1, 247-293.

IMAGE SOURCES Pinterest.com

Net-a-porter.com

USWeekly.com

Manoloblahnik.com

Ruelala.com

Dsw.com

Instagram.com

Gucci.com

Stevemadden.com

Louisvuitton.com

Nordstrom.com

Polyvore.com