Jeremy Scott & Moschino Are Being Sued For Copying

Designer Jeremy Scott and the Italian fashion house Moschino have been hit with a lawsuit by the graffiti artist Joseph Tierney, publicly known as "Rime" (aka Jersey Joe), on the grounds of copyright infringement for allegedly copying a piece of artwork that the artist produced on a wall for 'The Seventh Letter' art organisation in Detroit.

According to the complaint, filed in the U.S. District Court for the Central District of California on Wednesday 4th August, the designer Scott has been accused of copying onto items in Moschino's autumn/winter 2015 collection, the graffiti artists Rime's celebrated mural "Vandal eyes" (pictured below). The lawsuit states that: "Rime is a well-known artist. Defendants Moschino and Jeremy Scott - two household names in high fashion - inexplicably placed Rime's art on their highest-profile apparel without his knowledge or consent."

And if there is any doubt that there was 'actual' copying of the artists work, the artists name tag and replica signature can be seen copied onto accessories from the Moschino autumn/winter 2015 collection shown during Milan Fashion Week.

The complaint states that: "If this literal misappropriation were not bad enough, Moschino and Jeremy Scott did their own painting over that of the artist - superimposing the Moschino and Jeremy Scott brand names in spray-paint style as if part of the original work."

In particular, the lawsuit calls into question designs worn on the red carpet at this year's Met Ball, by Katy Perry and Scott himself, both looks identified as bearing a resemblance to the graffiti at hand.

Scott, the creative director of Moschino, has been accused of copyright infringement in the past, take it back a few fashion seasons, Jeremy Scott was accused of copying the artwork of the well-known skateboard artist Jim Phillips onto apparel items shown by Scott in his Fall/Winter 2013 collection. Almost identical reproductions of the artists images and artwork were reproduced on fashion items, leading to a regretful acknowledgement of the offence.

Back then, the designer was forced to apologise and in a statement, Scott said;

"I regret that certain pieces of my February 2013 Fall Winter fashion line incorporated imagery that was similar to images owned by NHS and Messrs. Phillips. I now recognize my mistake and out of respect to their work and their rights, the clothing and handbags at issue will not be produced or distributed."

The artists Phillips was awarded an undisclosed sum of money, and it seems in respect of the current pending lawsuit with Tierney, the same is likely to occur.

The present complaint notes: "The idea of putting graffiti - or "street" art - on ultra-expensive clothing was meant to provoke and generate publicity for the brand/designer." Stating that: "not only did Ms. Perry and Defendant Scott advertise, wear, and display the clothing at the event, they arrived at the event in a spray painted Rolls Royce, and even carried around Moschino branded cans of fake spray paint during the event, as if Defendants were responsible for the artwork."

It continues to state that: "Not only was [the artists] art exploited by Defendants, but his credibility as a graffiti artist was compromised."

If a fashion house wishes to use an artists work, the most responsible way is to pay a licence fee for use of the artwork. Rime is just the latest in a series of street artists who have argued that their work has been copied by well-known fashion brands - Coach, Preen, Versace, and Roberto Cavalli have all recently come under fire. But the real question here, is just how involved are these creative directors and designers in the creative process? It seems that head designers and creative directors of luxury fashion houses much more removed from the creative process than we realise. So these cases then are not only examples of intellectual property infringement, but also examples of poor brand management.

Tierney is seeking monetary damages for the alleged infringement of his work and has called for the fashion house Moschino to cease selling the infringing goods. Moschino has yet to comment on the lawsuit.

Watch this space for more news...

French Luxury Brands Group Kering Sue Alibaba Over Sale of Counterfeit Products

Alibaba, the largest e-commerce platform in China, has been sued by Parisian luxury and sportswear group Kering (owner's of brands that incluse Gucci, Stella McCartney, Alexander McQueen, Balenciaga, Bottega Veneta & Puma), for the second time in the space of a year.

The pending lawsuit claims that the e-commerce platform "knowingly encourage, assist, and profit from the sale of counterfeits on their online platforms...[and] make it possible for an army of counterfeiters to sell their illegal wares throughout the world,"

The law suit highlights some key points of interest for brand owners with concerns in China, a country that still challenges overseas traders with its huge cultural barriers and notorious connection with intellectual property rights infringement.

The Proceedings

In the case of Gucci America Inc. v. Alibaba Group Holding Ltd., 15-cv-03784, U.S. District Court, Southern District of New York (Manhattan) filed in May 2015, Kering claimed that Alibaba were aware of counterfeiting practices taking place on their website, have profited from such practices, and do not take appropriate measures to properly tackle the sale of counterfeit goods. Unofficial “Gucci” bags were available for sale on the website for as little as US$2, and Kering claimed that sellers from Alibaba’s website had shipped counterfeit products as far as New York. Buyers are encouraged to look for counterfeit goods on the website, with search suggestions such as “cucci”, “guchi” and “replica”.

A press statement by Alibaba disclosed that they find it difficult to monitor all the goods being sold on the platform, due to the immense size of the online market, but that they intend to fight the lawsuit. The Chinese company claim that they work closely with many brands, governmental bodies and chambers of commerce worldwide, with positive results for brand owners. They listed their joint work with Nike and Adidas in 2014, which culminated in the removal of many thousands of infringing sellers of counterfeit trainers and other related sports goods from the platform.

Alibaba’s Intellectual Property Rights Protection Policy

Alibaba does have policies in place for the protection of Intellectual Property Rights (IPRs) for brand owners, and has set up an online “Infringement Claims” system which is similar to those set up by other companies such as eBay and Facebook. Successful use of the system may lead to substantial penalties for infringement, such as the confiscation of security deposits paid by traders, the removal of listings, and a permanent ban from the Alibaba marketplace.

Some statistics released by Alibaba show their attempts to protect IPR holders. In 2013-2014 more than US$160 million was invested in fighting piracy and consumer protection. A task force of more than 2,000 Alibaba employees is currently spearheading a major anti-counterfeiting effort and over 5,000 volunteers assist with daily online surveillance. This has resulted in more than 400 arrests by Chinese authorities and the closure of over 200 online stores selling counterfeit goods worth more than US$7 million.

Problems for Brand Owners

Brand owners feel that Alibaba’s policy does not extend far enough and is far behind the pace of infringers. Having opted to file a lengthy and costly law suit, one may assume that Kering had already filed an unsuccessful complaint via Alibaba’s website, and that they have registered trademark protection in place. Their litigation against Alibaba may also be seen as a strategic and perhaps educative statement to the public against counterfeiting activities of any kind.

Nevertheless, past experience has shown that co-operation with Alibaba can result in the successful of removal of illegal content, as long as the owners strictly follow their online Intellectual Property Rights Protection Policy guidance, and clearly demonstrate the existence and validity of their ownership of the allegedly violated rights.

Be Proactive

IPR owners with an interest in China should work to improve their understanding of the Chinese market, and the mechanisms of the Alibaba website.

If you are filing a complaint via the Alibaba website, it is preferable that the documents are sent in Chinese via a local attorney as according to Alibaba, most of their staff are non-English speakers. A complaint filed in Chinese usually leads to a more rapid resolution. Be ready to provide proof of trademark registrations both in China and worldwide; documents related to your company’s business operations in China might also be relevant.

The existence of trademark registrations in China is not mandatory but has been proven to be essential to the chances of success in these disputes. It is important to note that China adopts the first-to-file principle in trademarks, over any prior user rights. This highlights the importance of having proper legal support in place, by filing trademarks in China and engaging in watching services to monitor third party activity.

Comments

Whilst for Kering, commencing litigation may be a last resort and an attempt to show the marketplace that they will not tolerate counterfeit activity, for brand owners in general, policing the Alibaba website, strictly following Alibaba’s complaint procedure in the event that counterfeits are found for sale online, and having trademark registrations in China might be the safest route to tackle online infringement pending the results of the US litigation.

CASSIO MOSSE is a Contributor to Fashion, Law & Business. Cassio is a Brazilian qualified lawyer and currently reading for a Master of Laws, at Queen Mary, University of London. He holds a position as foreign qualified attorney at EIP Legal in London and is an international correspondent for his law firm, Portugal Murad, where he advises clients in the field of intellectual property, with a particular focus on trade mark law and the fashion industry. He has an extensive background in branding with specific expertise with brand protection strategies.

Zac Posen Is The Latest Brand To Be Hit With An Unpaid Intern Lawsuit; Is The Culture Of The Unpaid Fashion Internship Changing?

Is the fashion industry's long union with unpaid interns coming to an end?

There have been a string of recent lawsuits that suggest that the culture of the long sought after (unpaid) fashion internship is changing. Zac Posen is the latest brand to be hit with an unpaid intern lawsuit, joining a long list of other well-known fashion brands including; Lacoste, Burberry, IMG, Gucci, Calvin Klein, Marc Jacobs, Oscar de la Renta, Coach Inc., Donna Karan, Alexander McQueen among others that have been accused of inadequately remunerating their interns.

In the lawsuit brought against the New York fashion retailer in the New York Supreme Court this past week, former intern Kevin Shahroozi claims that the fashion brand Zac Posen (The House of Z LLC) was in violation of New York Labor Laws, failing to pay minimum wage for work he and others performed. In particular, according to the complaint Shahroozi maintains that from March 2013 through to July 2013 he worked three days a week for around 21 hours, performing tasks involving “sketching, cutting patterns, organizing fabric, sewing, testing fabrics, researching in books and magazines, photocopying and running errands...without receiving compensation or education and/or training.”

In the recent onslaught of cases brought by interns against these well-known fashion houses, each lawsuit follows a common theme; namely that during the internship period, the former unpaid intern was an “employee” of the business providing services that significantly benefited the company. For which they were not adequately compensated for. Plus the company, along with failing to provide education or training, which is a common prerequisite for internship programs, did not pay the intern a minimum wage. In the latest unpaid intern case against the designer Zac Posen, Shahroozi is seeking minimum wage compensation, as well as damages for him and his fellow employees.

But here’s the thing, in the highly competitive industry of fashion, the infamous internships have become comme il faut, the de rigueur for those without experience wanting to break into the world of fashion. And we wonder if this is the beginning of the end of such a tradition. Yet, is the obscure internship reality a place where young talented designers have their ideas copied, designs pinched, and work not inadequately credited.

While this surge of recent unpaid internship cases show the campaign against unpaid work is gaining ground, the fashion industry is left to wonder with this surge of legal cases what it to be said for the future culture of the customary unpaid internship in fashion? Conde Nast – whose titles include Vogue and GQ, announced in October 2013 that the company would stop taking on interns after they were sued by two former interns.

The rise and fall of the fashion unpaid internships is stirring mixed feelings, for some it has been hugely beneficial, for others it has been received with feelings of exploitation. Whatever the case, the culture of the fashion internship seems to be changing, whether it be through interns taking a stand, or fashion houses refusing to take on interns, whilst these pending litigated cases unfold, it will be interesting to see what kind of precedent these lawsuits set for fashion houses and interns in the future.