Fashion Law Watch

Legal issues, laws and regulations concerning the world of fashion and luxury goods.

1
Riding On Coat-tails, Doesn’t Come Free: UK High Court Awards Additional Damages for Oh Polly’s Flagrant Infringement of House of CB’s Unregistered Design Rights
2
When Is an Office Chair Design Famous? U.S. Supreme Court Won’t Hear Herman Miller’s Trade Dress Appeal Regarding the Eames Chair
3
GLITTERS DID NOT MAKE SUCH A SPARKLE DIFFERENCE…NOT ON THIS OCCASION!
4
Australian Movement Trade Marks: Businesses “Moving” with the Times?
5
The image of woman objectification in advertising is no longer compliant as well as fashionable
6
“Lettuce Turnip the Beet” Pun on T-Shirts Not Trademark Use, Ninth Circuit Affirms
7
Vertical Agreements in the Luxury Sector
8
Neoprene Tote Bags: Watertight Not Copyright
9
Not such a friendly decision for Hugz: A new development in passing off that could help combat fashion copy-cats
10
UK Advertising Regulator makes first ever ruling on disclosures required for commercial marketing via a TikTok video

Riding On Coat-tails, Doesn’t Come Free: UK High Court Awards Additional Damages for Oh Polly’s Flagrant Infringement of House of CB’s Unregistered Design Rights

On 24 February 2021, the UK High Court found that a number of Oh Polly dress designs had infringed the unregistered design rights of its competitor, House of CB. This recent decision confirms the risk of additional damages being awarded if infringers flagrantly copy third party designs, whilst also confirming the difficulties brand owners face in bringing passing off actions based solely on copycat designs.

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When Is an Office Chair Design Famous? U.S. Supreme Court Won’t Hear Herman Miller’s Trade Dress Appeal Regarding the Eames Chair

The U.S. Supreme Court decided not to take up Herman Miller, Inc.’s appeal from a Ninth Circuit holding that partially overturned a jury verdict and held that Herman Miller’s popular Eames office chair (average retail price US$1,200) is not “famous” enough to qualify for trade dress dilution protection.[1] The Supreme Court’s denial of Herman Miller’s petition means the Ninth Circuit’s decision will stand.

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GLITTERS DID NOT MAKE SUCH A SPARKLE DIFFERENCE…NOT ON THIS OCCASION!

The sparkle effect that characterizes, since the very beginning, the Blonde Salad shoes did not impress the judges of the Court of Milan in a case in which the Tecnica Group S.p.A. (“Tecnica”) appealed the competent authorities in order to defend their famous Moon Boot snow boots – inspired by the footwear used by astronauts in the 1969 moon landing – against the snow boots marketed with the Chiara Ferragni Collection’s trademark.

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Australian Movement Trade Marks: Businesses “Moving” with the Times?

In a technological age where most consumers are receiving their information digitally, brands need to find new ways to engage with consumers. With nine out of ten Australians owning a smart phone and spending on average three hours a day on their devices, consumer engagement by way of multimedia is growing, increasing the popularity of movement trade marks.

The first movement trade mark was registered in Australia in 2002. There are currently 99 registered movement trade marks in Australia.

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The image of woman objectification in advertising is no longer compliant as well as fashionable

In the context of modern advertising, especially in the countries of the old continent and in the fashion market, the image of women has been severely challenged. This is a tricky topic with multiple socio-cultural, economic and political implications. Advertising is often accused of crossing the limits, with the risk of reducing the female image to a stereotyped object of mere commercial persuasion, also able to affect customers’ actions.

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“Lettuce Turnip the Beet” Pun on T-Shirts Not Trademark Use, Ninth Circuit Affirms

The owner of the trademark “LETTUCE TURNIP THE BEET” cannot prevent third parties from printing the mere phrase on t-shirts, tote bags, or other products. The U.S. Court of Appeals for the Ninth Circuit affirmed on January 20, 2021 that consumers are likely to purchase such products because they find the phrase aesthetically pleasing and not because they associate the phrase with any particular source. LTTB LLC v. Redbubble, Inc., 19-16464 (9th Cir. 2021).

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Vertical Agreements in the Luxury Sector

Our Brussels and London lawyers have contributed a Survey Article entitled “Vertical agreements in the luxury sector” to the Journal of European Competition Law & Practice, Oxford Academic. This is the first ever JECLAP Survey Article on vertical agreements in the luxury and fashion sector.

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Neoprene Tote Bags: Watertight Not Copyright

In the recent judgment State of Escape Accessories Pty Limited v Schwartz [2020] FCA 1606, Justice Davies of the Federal Court of Australia found a fashionable neoprene tote bag was not a “work of artistic craftsmanship” and therefore not an “artistic work” for the purposes of the Copyright Act 1968 (Cth) (the Act). Since the Court found that copyright did not subsist in the State of Escape bag (the Escape Bag), there was no finding of copyright infringement.

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Not such a friendly decision for Hugz: A new development in passing off that could help combat fashion copy-cats

On 19 November 2020, the Intellectual Property Enterprise Court (IPEC) in the UK handed down its judgment in the case of Freddy SPA v Hugz Clothing Ltd & Ors [2020] EWHC 3032, which ran for an unusually long time for the IPEC (three days).

The decision was a rare occurrence of a passing off claim, together with other IP causes of action, succeeding in the get-up of a functional item, being “bum enhancing jeans”. Ordinarily, such cases, particularly with respect to fashion items, fail as the get-up is seen as merely design elements or ornamental, or the circumstances of the use lead to a conclusion that other trade marks (e.g. brand names and logos) dominate consumer perception.

This case could embolden brand owners in relation to enforcement of the look and feel of their clothing as it creates the possibility of confusion ‘post-sale’ in addition to the point of sale.

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UK Advertising Regulator makes first ever ruling on disclosures required for commercial marketing via a TikTok video

A TikTok post on an Emily Canham’s account, a beauty blogger and YouTube star, is the first TikTok video found to be in breach of the Advertising Standards Authority’s (ASA) requirement for disclosure in the UK (see here).

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