When Fashion and the Law Collide: “The (Most) Coveted”

The-Coveted.com v. TheCoveted.com: is the case between two fashion related websites using the same name–“The Coveted”.  Janine  Jacob, founder of the popular Independent Fashion Bloggers organization (which I attended in 2009 and wrote about here) and creator of the Evolving Influence fashion blogger conference held in New York during NYFW, made the first use of “The Coveted” in connection with The-Coveted.com back in 2007.

Recently, a clique of fashion industry insiders, Erin Kleinberg and Stephanie Mark launched TheCoveted.com, which Jacobs, through her attorney, in a letter sent to TheCoveted.com, claims that the “The Coveted” is her trademark and alleges that TheCovented.com is confusingly similar to her mark, that it has caused actual confusion to the public,  and that it “unfairly capitalizes on the reputation and goodwill that [The-Coveted.com] ha[s] built over the last four years”.  In addition to requesting TheCovented.com re-brand their project, the letter also proposes to “resolve this issue amicably and expeditiously”.

A  fiery letter back to The-Coveted.com, demanded that it stop discussing publicly, their allegations and asserted their rights to use “The Coveted” as bona fide purchasers of the domain name and that they did not know that The-Coveted.com existed.

It is a wonder why Jacobs did not herself purchase thecoveted.com. There are legitimate possible reasons, however, and Jacobs still has a case. When it comes to urls, trademark owners’ rights generally prevail over .com owners. Thus, Jacobs will first need to prove rights to the mark “The Coveted”, which in this case must be analyzed under state or common law, as opposed to federal law, because the mark wasn’t registered with the United States Patent and Trademark Office.

One of the major elements to proving trademark infringement is confusing similarity. I know that when I was led, by the huge amount of publicity its launch received, to visit TheCoveted.com about a week ago, not paying much attention to the url, I assumed I was on The-Coveted.com, which I had visited before but not recently, even though the entire site, its look and content, was strikingly different from that of the original. I WAS CONFUSED.

The intent of the alleged infringer is also a factor, among others. There is some obvious evidence of bad faith in the use of the name and domain, and let’s face it, we’re talking about the fashion industry here. And industry insiders are known for their backbiting and arrogant ways.  The sense of entitlement has no doubt been undercut by the rise of some successful and prominent fashion bloggers. It’s ironic (but, probably not really) that the incident involves Jacobs, who is nearly famous in the blogosphere and for none other than her commitment to uniting fashion bloggers. It’s a shame altogether.  Imagine the feeling of having the thing you have been pouring you heart into for years to be stolen from you overnight. In the fashion world, it’s akin to a knock-off, which is never cute on anyone.

Who do those industry bitches think they are anyway? #TeamJenine.

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