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WWD Law Review: The Rights to Stripe and Trump's China Move

WWD Law Review: The Rights to Stripe and Trump's China Move
From WWD - August 18, 2017

The fashion and legal worlds are seeing stripes as Forever 21 is embroiled in down-right bitter battles with both Gucci and Adidas over their famous striped trademarks. While the cases shed light on the importantand often very valuablerole that trademarks play in fashion, they also indicate a change in approach for Forever 21, which is no longer hiding behind quick and quiet settlements.

Meanwhile, President Trump has made good on his word to crack down on intellectual property infringement in China, authorizing a probe into the Asian nations treatment of U.S.-held IP.

Three Stripes and Youre Out

Much has been made of the protectability of stripes over the past several weeks, especially given the latest update in the trademark case that Forever 21 filed against Gucci in June. Earlier this month, Gucci filed its answer to Forever 21s suit, calling the Los Angeles-based fast-fashion giants action a legal assault against its brand built on undermining the very notion of trademark protection.

In addition to attempting to set the stage for the court by calling out Forever 21 for brazenly masquerading as a victim of unfair competition in search of legal redress in the courts, Gucci filed a handful of claims of its own, including trademark infringement and dilution, and unfair competition. In short: Gucci is making good on the multiple cease-and-desist letters it sent Forever 21 over the past year, in which it alleged that an array of the U.S.-based retailers garments bearing three red and green, and three red and blue stripes were infringing and diluting its own famous striped marks.

It is difficult to say at the outset who will come out on top in this case if it does, in fact, go to trial, largely due to the fact that it is unclear if consumers are likely to be confused as to the source of the Forever 21 goods bearing the Gucci trademarks. There is another interesting takeaway at play in this budding intellectual property war and it centers on the value of a brands IPnamely, its trademarks.

As Gucci noted in its response to Forever 21s suit, the purpose of its counterclaims is standing up to assert its commitment to its customers that it will protect the value and quality of Gucci products. Given that this ismost centrallya trademark issue, the value that Gucci is referring to is derived not from the actual designs at issuethe bomber jackets, sweaters, etc. No, it is almost exclusively from Guccis trademarks, what the Italian design house refers to as some of the most famous marks in the fashion world.

This is frequently the case when it comes to high fashion and/or luxury goods: The presence of a brands trademarks is what garners the most value and what consumers are, essentially, paying for, which is exactly why brands spend exorbitant amounts of resources policing unauthorized uses of their marks, as Gucci is doing in the case at hand.

If Gucci were to be lax with unauthorized uses of its well-known marks, they would, at least in theory, become far less exclusive and less valuable, and the prices that Gucci could demand forlogo or striped-covered garments and accessoriesand sunglasses, fragrances and many other productswould drop significantly.

Do Not Forget Adidas

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