CATWALK JUSTICE: This Is What Happens When You Bore Nina Garcia
by Charles Colman | 3:34 pm, August 19th, 2011
Catwalk Justice is our weekly column on fashion law, courtesy of Charles Colman of Charles Colman Law, PLLC and LAW OF FASHION .CATWALK JUSTICE devoted last week’s entire column to the Louboutin v. YSL case, there’s quite a bit of fashion law news to catch up on. Much of it, however, seems oddly familiar. There seem to be three lessons to take from this week’s events: 1) fashion law history is doomed to repeat itself; 2) where you can’t sue to get what you want, at least try going the contract route (even if it’s likely to fail, you may get publicity for a ridiculous offer); 3) and models (or in some cases, their parents) are a lot tougher than they look — at least, in the courtroom.
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1. The Situation With Nina Garcia
This week, Abercrombie and I found ourselves in similar "Situations." Abercrombie was annoyed by Mike "The Situation" Sorrentino 's continuing patronage of its brand; I was annoyed by the Project Runway-related #DontBoreNina meme that Nina Garcia was encouraging Twitterers to perpetuate. Neither set of circumstances are especially appropriate for lawsuit; I've never heard of a "trademark tarnishment " claim brought against a customer solely for his patronage of a particular label, and mere annoyance at a Twitter hashtag certainly doesn't satisfy the requirements of an "intentional infliction of emotional distress " claim. So A&F and I pursued similar strategies: Abercrombie offered a "substantial payment" to The Situation if he would stop wearing its clothes, while I offered to "live with" the #DontBoreNina meme if she would read this column.
As of this writing, there has been no word from either Sitch or Nina regarding A&F's and my outstanding offers... which leads us nicely back into the topic I'm supposed to be writing about: law, and specifically, the general rule that silence does not constitute a valid acceptance of an offer .
2. We Guess It's A Shore Thing?
As regular readers of this column know, CATWALK JUSTICE has begrudgingly covered Jersey Shore -related legal happenings before. (As a result, I can state with some confidence that even if Sitch accepted A&F's offer, there is a strong possibility he would not honor the contract .) While this writer was busy analyzing the most important fashion law case of the year , another Shore star got into legal trouble -- this time, Jenni, "Jwoww" Farley , who was sued in Oklahoma , of all places, for allegedly breaching a marketing agreement and infringing copyrighted designs with her new line of ... yes, tanning lotions. Remember Lesson 1: fashion law history repeats itself. Mere weeks ago, CATWALK JUSTICE covered Lindsay Lohan's narrow escape from a self-tanner-related lawsuit in Florida, on the basis that she lacked a sufficient connection to the state to be hauled into court there. Perhaps Jwoww can hire the same four law firms
And as a final word (hopefully) on the Shore, one insightful member of my LAW OF FASHION LinkedIn group noted the parallels between A&F's attempt to preserve "the aspirational nature of [its] brand" through the proposed non-endorsement contract with Sitch, and last year's episode in which Snooki was given free luxury handbags by competitors of the donated brands -- a form of brand assassination whose legal implications I am still mulling over and will analyze on my blog in the near future. Another insightful, more cynical LinkedIn commenter wondered aloud if all of this was of a piece with Abercrombie's recurring difficulties with discrimination lawsuits (in which case the word "aspirational" really functions as a euphemism for not you , not you , and not you .)
3. Let's Trademark Our Fantasies
It seems that overly broad assertions of trademark rights aren't just for basic colors, anymore. While trademark lawsuits over words are inherently about linguistic monopolies, and such lawsuits are certainly nothing new (see , e.g. , lawsuit by Ke$ha ; lawsuit against Oprah ), the past two weeks featured an especially broad array of absurd claims to words and phrases, in fashion and elsewhere.
A company sued Victoria's Secret for using the word "fantasy" in connection with a new line of scented products branded "VS Fantasies"; the plaintiff, Parfums de Coeur , claims the line infringes on its trademarks in products maladroitly called "Sexiest Fantasies," "Body Fantasies," and "Fresh White Musk Fantasy." Apart from the damning facts that 1) the products look completely different , 2) "Victoria's Secret" actually appears above the name of every product, and 3) the word "fantasy" does not even appear on some of VS's products in the line, what about BRITNEY her fantasies matter? (Or is Parfums de Coeur just giving her a break after the singer's tough legal year in the fragrance department?)
Relatedly, the Humphrey Bogart and Marlon Brando estates continued their legal rampage against anyone and everyone who has dared to use the words "Bogart" or "Brando" in connection with products ... which, for some strange reason, tend to be sofas . PSA: Not every use of a deceased celebrity's name constitutes trademark infringement. Just ask Princess Diana's executors or Fred Astaire's widow .
4. Also Fashionable? Music Law!
Since music and fashion are inextricably intertwined, especially now that we're in year 3 A.G. ("After Gaga") , CATWALK JUSTICE is going to give you a quick heads-up on the legal goings-on in the music industry. In short, record labels are #Superfreakingout about the imminent reversion of copyrights to songwriters, performers, and/or their heirs under statutory "copyright termination" provisions no one much cared about until now. Under the key provision of the U.S. Copyright Act, authors of certain works can pull the trigger on the reversion of their copyrights starting on January 1, 2013. While termination cases, many involving comic books , have been moving through the court system for a while, the New York Times -- and thus, the rest of the world -- took note of the trend this week . People who care about this sort of thing are especially riled up over latest test case in the music industry, filed by the one-time lead singer of the Village People and lyricist of the still-incredibly-lucrative "Y.M.C.A." Whatever the outcome of the case, you needn't fear: the Times reports that the Village People's other cultural treasure, "Macho Man," is safely in the vaults of the record label and publishing company that currently own it.
Meanwhile, Prince has a non-copyright "Situation" on his hands -- and I use that word in quotes yet again here, because the Artist's situation is reminiscent of the Sorrentino lawsuit CATWALK JUSTICE covered two weeks ago. A while back, Prince was sued for allegedly failing to promote a line of fragrances he had signed on to endorse. Apparently, he had a nasty habit of not showing up for court appearances, leading to the entry of a default judgment (no-show = you lose) that the court recently refused to vacate . The news of Prince's casual disregard for the judicial system, along with some notable recent rants , suggest that he may have taken the message of one of his hits a bit too seriously.
Finally, Vampire Weekend has settled a lawsuit with the model whose image was allegedly used on the cover of the band's album Contra without her consent...
5. Model and Nazis and Skechers, Oh My!
• Still, it turns out models are tougher than they look (Lesson 3), at least in the courtroom. A cadre of "young, up-and-coming" models has sued Skechers for allegedly using their images without permission in "countless" advertisements distributed globally.
• Urban Outfitters , too, felt the wrath of models this week -- or rather, of one underage model's parents -- in a lawsuit over a photo shoot that required the 15-year-old in question to pose "in a blatantly salacious manner with her legs spread, without a bra, revealing portions of her breasts ." Urban's only argument, in keeping with a line of obscure legal defenses covered by CATWALK JUSTICE recently, may be the rarely-invoked "at least she's not ten years old" defense -- which, of course, refers to the controversy over the ten-year-old Thylane Loubry Blondeau's recent spread in French Vogue . It's cool, it's cool ... her mom's okay with it !
• Apparently the old "pull the fire alarm" trick only works on TV, as Chanel (the company) felt compelled to come forward this week and defend Chanel (the alleged Nazi sympathizer) against charges of anti-Semitism.
• And lest I neglect the case I have been following so obsessively on my blog , lawyers for Louboutin and Yves Saint Laurent attended a conference with Judge Marrero this morning to figure out how shit's gonna go down as the parties move forward. As we already know, Louboutin plans to appeal the denial of its requested preliminary injunction . For additional updates, you'll have to await the word of Women's Wear Daily's Alex Steigrad , the Anna Wintour of fashion law reporting. No, wait, I have that backwards: Anna Wintour is the Alex Steigrad of fashion magazine editing.
[This post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities. Any views expressed herein are those of the writer on the particular date of this post, and should not necessarily be attributed to his law firm or its clients.]
Catwalk Justice Christian Louboutin Coco Chanel Hailey Clauson Nina Garcia Skechers The Jersey Shore The Situation The VIllage People Urban Outfitters Victoria's Secret Yves Saint Laurent
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