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