Articles Posted in Trademark Litigation

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A federal complaint alleging (i) copyright infringement, (ii) unfair competition and false designation of origin under the Lanham Act § 43(a) (15 U.S.C. 1125), (iii) unlawful deceptive acts and practices, and (iv) unfair competition under New York law was filed against Target Corp., by well renowned fashion designer Diane von Furstenberg (“DVN”). DVN accuses Target of selling a dress with a print that is nearly identical to DVN’s fabric pattern and design for a “spotted frog” print, for which DVN owns copyright registration number VAu704-073. Click HERE to read the complaint.

dvndresspic.jpgDVN alleges that after her attorneys sent a cease and desist letter to Target, the infringing dress was quickly removed from Target’s website. Target, however, is accused of continuing to sell the infringing dresses at its retail locations across the country. Thus, the complaint alleges that Target’s “infringement is willful, done with knowledge of and/or in reckless disregard of DVF’s rights in its Spotted Frog Design.” If the infringement is found to be willful, the Court may award punitive damages.

PRACTICE NOTE: Copyright laws currently protect patterns and designs printed on or stitched into the fabric. As we have previously discussed, however, copyright protection is not currently available to protect fashion designs themselves (i.e. the cut, style, or dimensions of clothing). But the Design Piracy Prohibition Act (H.R. 5055) bill is currently pending in congress that, if enacted into law, will provide three years of protection for the fashion design if certain conditions are met. Click Here To Read About The Bill.

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The New England Patriots are apparently so confident that they will win the Super Bowl and finish the season with a perfect 19 and 0 record, that on January 17, 2008, they filed trademark applications with the United States Patent and Trademark Office to protect the “19-0 The Perfect Season” and “19-0” trademarks on numerous goods and services. Click To See The Applications. Not to be outdone and to show support for the New York Giants, the New York Post newspaper has reportedly filed a trademark application for “18-1.”

The Patriots, however, may be dismayed to learn that they were beaten to the punch. William Harpole – who was apparently more confident than the Patriots – filed a trademark application for “19-0 The Perfect Season” over two months earlier. Click To See Harpole’s Application. Nine years earlier, Mr. Harpole – a possible clairvoyant – had also filed a trademark application for “The Perfect Season 19-0” on December 7, 1998. But the 1998 application was later unwisely abandoned, thereby drawing the previous “possible clairvoyant” accolade into question.

Because Mr. Harpole’s current trademark application filing date precedes the Patriot’s application by over two months, Mr. Harpole’s application is superior to that of the Patriot’s and a trademark dispute and possible litigation may follow. See 37 C.F.R. § 2.83.

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Nike’s Glendale, California based trademark attorneys filed a complaint in Los Angeles Federal District Court against defendants Carl Robbins and CWR Enterprises, Inc. alleging infringement of numerous registered trademarks. Nike accuses the defendants of allegedly selling “unlicensed and counterfeit products, specifically including its core product of sports shoes, bearing Nike’s exclusive trademarks.” Nike’s complaint includes a list of over forty registered trademarks which are allegedly infringed.

nike_swoosh.jpg The lawsuit sets forth five causes of action and seeks a preliminary injunction and a permanent injunction of Defendants’ alleged conduct:

  • Trademark infringement “under Sections 32 and 43 of the Lanham Act, 15 U.S.C. §§ 1114 and 1125, for infringement of registered and unregisterd marks” and accuses Defendants of selling counterfeit products under 15 U.S.C. § 1116(d);
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Luxury-goods maker Louis Vuitton sued Haute Diggity Dog, a small company, for trademark, trade dress and copyright infringement for selling “Chewy Vuiton” dog chew toys and beds. The trial court determined that Louis Vuitton’s trademark litigation stance had more bark than bite and ruled in Haute Diggity’s favor. “The fact that the real Vuitton name, [trademarks and trade dress] are strong and recognizable makes it unlikely that a parody – particularly one involving a pet chew toy and bed – will be confused with the real product,” stated the court, while addressing the likelihood of confusion factors.

chewyVpic.jpgAs an amusing side-note, the company also spoofs other well known trademarks by selling products under the “Dog Perignon,” “Bark Jacobs,” “Chewnel # 5,” and “Sniffany & Co.” trademarks.

Louis Vuitton doggedly appealed the decision and the appellate court recently agreed with the trial court that Haute Diggity’s dog toys were a successful parody of the Louis Vuitton’s trademark, trade dress and copyright. The Fourth Circuit Court of Appeals stated:

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