Abercrombie and Fierce

After researching bankruptcy and tax law all day long, I am happy to analyze the merits of the suit filed by Abercrombie and Fitch against Beyoncé Knowel, over the right use the name Fierce for her fragrance. 

 Beyoncé  recently signed a deal with Coty Inc. (the company behind the Vera Wang, Jennifer Lopez, and Sarah Jessica Parker fragrances) to produce her own perfume, presumably under her “Sasha Fierce” label. 

 But, Abercrombie  has sold nearly $200 million worth of fragrance, called Fierce, since 2002, and claims that a fragrance under the singer’s “Sasha Fierce” label “poses a likelihood of confusion” with the retailer’s own “Fierce” brand. The apparel retailer said such confusion could deprive it of control over its trademark, and perhaps cost it sales, and filed suit this past Tuesday in Federal Court (Abercrombie & Fitch Co v. Knowles, U.S. District Court, Southern District of Ohio (Columbus), No. 09-807)  after attempts to settle the dispute out of court failed. The claim alleges potential trademark infringement, unfair competition and deceptive trade practices and seeks an injunction to stop Knowles’ use of the Fierce mark for fragrance, among other remedies.

 Although a Coty representative denies plans to use either “Sasha” or “Fierce” for the fragrance, according to court documents Knowles filed an application with the U.S. Patent and Trademark Office in September 2008 for the “Sasha Fierce” mark in the fragrance category. Abercrombie asked Beyoncé to cease and desist pursuing the mark, which she ignored and filed a still-pending opposition to Knowles’ trademark application in May.

 There are  eight factors considered when deciding if one trademark infringes another.  The focus of the inquiry is, however, whether consumers will likely be confused. The goal is to protect consumers, not companies. Therefore, even if the marks in question are quite similar (even identical) but there is no real likelihood that consumers will be confused, then there would be no harm.

 So, really, the only thing confusing here is why the hell Abercrombie’s “Fierce”scent is so damn potent and lingers throughout the entire mall. I have a headache just thinking about it.

The other claims, unfair competition and deceptive trade practices, are often used theories in similar cases, established by Congress in part to protect consumers from deceptive trade practices and indirectly protects competitors because some deceptive trade practices that injure consumers also injure competing businesses.

Without  conducting the entire analysis here for you (I did it in my head, because that’s what I do…I’ll show my work if you beg), my prediction is that the court will conclude that the “Sasha Fierce” mark does not infringe the “Fierce” mark owned and used by Abercrombie.

Source

 

When Fashion and the Law Collide: Salacious Obscenities

One visit to the American Apparel website, and it’s clear that they aren’t just selling T-shirts (that I so adore). Adolescent-looking models, with dear caught in headlights expressions, in “come hither” poses, are like, well, the retailers trademark. And nipples are often exposed.

Attitudes regarding nudity in Western cultures are often more critical than attitudes in non-western cultures. For example, in the U.S., exposure of female nipples is a criminal offense in many states and are not  allowed in public at all, while in the U.K., nudity may not be used to “harass, alarm or distress” according to the Public Order Act of 1986.

However, it was a British advertising watchdog that recently criticized the clothing company for the ad pictured below, after a reader complained to the Advertising Standards Authority (ASA) that the ad, which originally ran on the back cover of Vicemagazine in the U.K., but with a series of six images — instead of three — in which the model further disrobes from her flex fleece and where her nipple was partially exposed in one shot, was “offensive and inappropriate because the model appeared young and it could be seen to sexualize a child.” Reuters reports:

 American Apparel said that it did not think the partial nudity in the advertisement would cause widespread offense. It said that the model was 23 years old and did not look under 16, nor was she portrayed as a sex object. (because you look naturally sexy wearing a hoodie, right?)

The ASA disagreed, calling the images “provocative,” and adding,

“Because the ad could be seen to sexualize a model who appeared to be a child under the age of 16 years, we concluded that it was inappropriate and could cause serious offense to some readers.”

Sexual materials range between erotic art (which usually includes “classic nude forms” such as Michelangelo’s David statue) and the generally less respected commercial pornography. The differentiation between sexual materials is a particularly difficult one and a contentious First Amendment issue that has not fully been settled. Many cultures have produced laws to define what is considered to be “obscene”, and censorship is often used to try to suppress or control materials that are obscene under these definitions. The definition differs from culture to culture, between communities within a single culture, and also between individuals within those communities.

In the United States, the 1973 ruling of the Supreme Court of the United States in Miller v. California established a three-tiered test to determine what was obscene – and thus not protected, versus what was merely erotic and thus protected by the First Amendment.

Delivering the opinion of the court, Chief Justice Warren Burger wrote,

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The legal distinction between artistic nudity, and permitted commercial pornography (which includes sexual penetration) that are deemed as “protected forms of speech” versus “obscene acts”, which are illegal acts and separate from those permitted areas, are usually separated by the predominant culture appreciation regarding such. In fact, federal obscenity law in the U.S. is highly unusual in that—not only is there no uniform national standard, but rather, there is an explicit legal precedent that all but guarantees that something that is legally “obscene” in one jurisdiction may not be in another. In effect, the First Amendment protections of free speech vary by location within the U.S., and over time.

However, “mere nudity” was upheld in the Supreme Court case Jenkins v. Georgia , 418 U.S. 153 (1974) and deemed not to be obscene under the constitutional standards announced by Miller. As declared by the judge at trial “… nudity alone does not render material obscene under Miller’s standards.” In the U.S., the word “obscenity” is usually limited to content that directly refers to explicit sexual acts that are publicly accessible, though it has at times encompassed other subject matters, such as spoken and written language that can be publicly transmitted and received by the general public.

With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and “community standards” has created significant controversy in the legal community. So, while the nude content was offensive to some in the U.K. community and it has been banned from distribution through print publication (so that no one else will happen to glance over at the doctor’s office or on public transit to be incited with disgust), the online community isn’t as easily offended by nudity, perhaps, and hasn’t spoken out. So, if you’re in the U.K., and want to see bare nipples, then you’ll have to go to American Apparel’s website, where nipples run free, although, I couldn’t find the other three photos on the website either, only the ones pictured above (there are plenty others, however).

What do you think of the racy advertisements? Offensive? Not offensive?

Tale of the Counterfeit Bag Carrying IP Lawyer

I was at a CLE (Continuing Legal Education) last week sitting in a session on intellectual property when I saw the most unbelieveable thing: another lawyer sitting in the same session on intellectual property, carrying a knockoff Louis Vuitton bag! She looked so confident. Her head held high.

Over the weekend I kept thinking, “What does this mean? There must be some sort of conflict of interest. How can Counterfeit Bag Carrying Lawyer Lady protect the interests of her client, Brand Owner, and at the same time disregard the  legal protection that has been granted to another brand owner? Certainly she wouldn’t buy a knockoff of Brand Owner’s products. Is Counterfeit Bag Carrying Lawyer Lady characteristically unfit?!

Then, my concerns were confirmed when I came across this article about Professor Dan Ariely, who has done studies and written the report, “Faking It: The Psychology of Dishonesty and Counterfeits,”on how counterfeit goods influence people in other aspects of their lives. “The effect on morality, people don’t anticipate,” says the Professor.  Among his findings: People who were told they were wearing “fake” designer sunglasses were significantly more likely to cheat on tests than ones told they were wearing “real” ones.

Prof. Ariely findings didn’t exactly clear things up for me. Counterfeit Bag Carrying Lawyer Lady is undoubtedly held to a higher standard. And she certainly knows better. But is she categorically “immoral” for her faux designer bag carrying ways? There’s an interesting debate about the study going on over at The New York Times. One of my favorite comments:

I question if this if the real online NY Times or the fake version. Both versions might keep me informed but the real version just gives me a certain feeling of satisfaction that is hard to explain.

How do we know Prof. Ariely is a fake and an importer? Did he fake his results after lying to all those people about the brand of their sunglasses. Who checked his morality and results after his deceptions?

Someone should do a study on women who wear hair weaves.