Abercrombie and Fierce

VMA%20Pics%20-%20Sasha%20FierceAfter 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.
 

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