The murky world of PR gifting could be changing

The Murky World of PR Gifting Could Be Changing

Gifting has been around for decades. Whether it’s the offer of a trip, treatment or product, freebies are part and parcel of fashion and beauty journalism. But adding influencers to the mix has pushed numerous issues to the forefront.

Image Credit @ Jeffree Star Youtube

Victoria Magrath, the woman behind Inthefrow, describes a PR gift as “an item or service given to a person of influence in the hope that they will share their experience with an audience.” Recipients aren’t required to mention their free shoes or facial but PRs bet on the fact that they will. Plus, it’s free advertising for brands. Sending products to esteemed journalists or people with millions of followers costs very little in comparison to a huge campaign.

The practice of gifting slotted perfectly into haul culture. YouTubers would unbox item after item, creating a lifestyle that idolised pretty packaging, ostentatious add-ons and, most importantly, lots of new stuff. While some subscribers still can’t get enough, a growing movement is asking for less superficiality.

As the Guardian reports, bloggers and vloggers are beginning to shun the “more is more” attitude. Their posts and videos centre on using rather than abusing. They’re decluttering, sending a message to brands that product after product is no longer wanted. Some admit to receiving so much stuff that unopened items are being thrown away (or donated where possible). Others lament being sent every shade in a make-up range when it’s obvious that no one person can use it all.

It’s not just influencers that have had enough. Journalists can also receive multiple parcels in one day along with countless emails offering a free unmissable experience. Cheryl Wischhover, a former beauty reporter at the now defunct Racked, once wrote that she had received $64,000 (around £49,000) worth of gifts in just six months. She’s not alone. A PR for a haircare brand also told Racked that his team would send every new product to around 60 print editors, up to 100 digital editors and between 300 and 600 influencers.

These mass mail-outs often involve excessive Instagram-friendly packaging. With layers upon layers of tissue paper, bubble wrap and more, revealing the goods inside is a gargantuan task. This presents another more pressing problem: environmental waste.

In 2018, awareness campaign Zero Waste Week reported that the cosmetics industry produces 120 billion units of packaging each year. Those boxes in turn result in the annual loss of 18 million acres of forest. The catch 22 is obvious. Reducing packaging helps the planet, but may culminate in less brand exposure. Big and bold does, after all, capture the human eye.

But brands and influencers sometimes forget that damaging statistics and shady practices remain in the mind and heart. The entire concept of gifting has an unethical feel. Although no promises are made, a person is much more likely to favourably promote a company if it has presented them with a gift — and much less likely to criticise it. Journalists can easily lose their impartiality. In fact, some publications actively ban their staff from accepting gifts above a certain monetary value.

Influencers, on the other hand, don’t have a set salary and may rely on positive brand relationships to boost their income. Failing to post about an extravagant gift could remove their name from VIP lists, detrimentally impacting their career. That possibility — the possibility of being shut out — may naturally encourage glowing reviews.

It’s not like their followers have to know. Or do they? The UK Advertising Standards Authority who enforce the CAP Code (the UK rules that cover non-broadcast advertising (for example print, online), sales promotion and direct marketing) only requires an #ad hashtag disclosure if an influencer has been paid in some way (including with a freebie) and allowed the brand to have a degree of editorial control over the content. Gifting doesn’t fall neatly under that remit. As the ASA explain ‘If you’ve been ‘paid’ (either in money or in gifts/freebies),’ but have been paid in absence of an ‘affiliate arrangement with the brand’ and they don’t have any ‘control’ of what or when you post, it’s unlikely that the content will count as advertising under the CAP Code. ‘

That said, when a brand rewards an influencer with a payment, free gift, or other benefits, this is still subject to regulation under consumer protection legislation enforced by the Competition and Markets Authority (CMA). As we reported earlier this year, The CMA expects influencers to disclose when they’ve received any form of monetary payment, a loan of a product or service, any incentive and/or commission or have been given the product they’re posting about for free.

As George Lusty, the CMA's Senior Director for Consumer Protection points too: "If celebrities or influencers are posting about a product on social media, they must make it clear if they've been paid to promote it, or have been gifted, loaned a product or thanked in some other way by a brand. No one should be left thinking that a Tweet or Instagram post is just the person's opinion when it's not.”

So is the clever yet slightly manipulative tradition on its way out? Yes, but not in the way you might think. It won’t stop, but its methods may change.

A desire for authenticity is leading both journalists and influencers to place more value on transparency. It’s unlikely that any will outright ban gifting, but disclosing every item that wasn’t the product of a genuine transaction is the new best practice. Some individuals are encouraging PRs to only send samples if they are requested or, alternatively, to send a much smaller parcel with one select product. More still are calling out environmentally-damaging packaging, turning what could have been a complimentary post into a negative one.

Influencers using their influence for good. What’s not to like?

Written by Lauren Sharkey and Edited by Tania Phipps-Rufus

How to create a billion-dollar beauty business

How to Create A Billion-Dollar Beauty Business

For those who are stuck between launching a fashion or beauty brand, take one look at both industries’ bottom lines. While fashion businesses can take an age to pick up steam (often never making it), today’s beauty-focused companies can receive billion-dollar valuations in just a few years.

Image Miu Miu AW19 @ Pat Mcgrath Instagram

Glossier — a brand famed for its effortless aesthetic — was recently valued at $1.2 billion, earning it the illustrious unicorn title. (The moniker refers to any privately held start-up valued at over $1 billion.) Esteemed make-up artist Pat McGrath’s beauty line also hit the billion-dollar mark in 2018, albeit a lot more quietly. And Kylie Jenner was recently proclaimed history’s youngest self-made billionaire by Forbes. Not because of her family’s reality TV show, but because of her ever-growing beauty business.

So what’s the secret to becoming a beauty unicorn? First, build a digital presence. All of the above had some degree of influence before branching out into the business world. Jenner’s is obvious. McGrath, however, built up a loyal Instagram following thanks to her creative runway techniques. Glossier founder Emily Weiss started a blog that accrued millions of readers. The same goes for Huda Kattan; another beauty blogger-turned-CEO whose brand too sparkles with a billion-dollar valuation.

Image @ Glossier

Whether personal or professional, a beauty CEO with a large following can drive sales straight off the bat. Millions of fans means a successful direct-to-consumer strategy and the ability to immediately widen profit margins via free social media marketing. In fact, most fast-growing brands have capitalised on the Instagram generation’s weakness for aesthetically pleasing imagery. Photos, products and packaging can be otherworldly a la McGrath or accessible like Glossier. Both appeal in equal measure.

Weiss’ Glossier is one of the ‘oldest’ of the new guard. Launching in 2014 with a teeny tiny range of make-up, its ethos revolves around boosting women’s natural state instead of playing on their insecurities. It’s this spirit — plus an easygoing nature — that has secured Weiss millions in funding. She actively asks customers for feedback and listens to their desires, but doesn’t rush a release to please the crowd. She opens stores when she knows she has the customer base to pay for it. She has quickly but subtly built an inclusive world; one where people obsess over the exact hue of Glossier pink yet less so on personal perfection.

Pat McGrath Labs falls at the other end of the spectrum. Designed for hardcore beauty fans, the make-up artist’s highly pigmented shadows, highlighters and lipsticks promise a high fashion result. She proves it too, using them for countless shows. But how did a more niche brand reach a billion-dollar valuation in just two years? Well, McGrath has utilised one of the fashion industry’s newer sales strategies: the drop. Traditionally adopted by streetwear labels, it involves building hype around a particular product or collection by announcing its contents and launch date ahead of time. The McGrath mania is clearly working. In July 2018, Eurazeo Brands invested a rather surprising $60 million in her brand. A spot in Sephora stores also drives sales.

Jenner, on the other hand, is believed to have received no outside investment. Using her 130 million Instagram following to drum up interest, she began Kylie Cosmetics in November 2015 with a simple $29 lip kit. The first batch sold out within a minute and listings on resale sites soared. After six weeks, she enlisted the help of Seed Beauty; a company that is now responsible for her research, development, manufacturing and packaging. Her product range has ballooned, her personal net worth has hit billionaire status, and Kylie Cosmetics itself is expected to be worth a billion dollars by 2022, reports WWD.

Forbes credits the 21-year-old’s success to a “miniscule overhead”. She spends nothing on advertising, has a small team and lets another company do most of the work. But even she is hitting a digital wall. Just like all of the aforementioned brands, Jenner has moved to old-fashioned brick-and-mortar. She has trialled pop-up stores and, in November 2018, released Kylie Cosmetics in Ulta Beauty stores across the US. ($54.5 million worth of products were sold in the first six weeks, states Forbes.)

However exciting it sounds, exponential growth has its downsides. Namely, that it can’t last forever. In the summer of 2018, The Business of Fashion reported that a burst in the beauty bubble was almost inevitable. Valuations are getting higher and higher, putting pressure on businesses to build sales and awareness at the same pace as previous years.

Some are struggling. According to Forbes, Kylie Cosmetics only demonstrated single-digit growth in 2017 and 2018 compared to a zero to $307 million jump in its launch year. Take into account the introduction of tons of new products and shades throughout that period and it’s a little worrying.

To stay in the game long-term, beauty businesses must embrace the old and new. Digital works, but there comes a time when physical stores — preferably international ones — will need to be added to the mix. Starting with one core product (like Jenner’s lip kits and Rihanna’s diverse Fenty Beauty foundation range) works, but an expansion will be due.

As countless more beauty brands enter the domain, companies shouldn’t assume that an online-only customer base will remain loyal. To keep them coming, you’ve got to keep them engaged. Glossier’s model does just that: the company recently introduced a playful make-up collection and has just unveiled a Miami pop-up store.

It’s the one to follow. For now, anyway.

Written by Lauren Sharkey

Could leaving the runway be the path to a profitable fashion brand?

Could leaving the runway be the path to a profitable fashion brand?

The news that Calvin Klein is closing its runway division may not come as a shock. In December 2018, the American brand’s chief creative officer, Raf Simons, quit the post eight months before the end of his contract. Now, Calvin Klein is shutting down its Calvin Klein Collection business, according to the New York Post.

Simons’ hasty exit was reportedly down to a profit loss on the brand’s ready-to-wear offering; the thing he was specifically brought in to elevate. The 51-year-old talent succeeded in scoring rave reviews and garnering celebrity fans, but his runway line — which was renamed Calvin Klein 205W39NYC — failed to live up to financial expectations.

Calvin Klein reported a decrease in earnings in the third quarter of 2018. Before interest and taxes, the company made $121 million (£92 million). A year prior, earnings were at $142 million (£108 million). WWD reports this loss was down to a $10 million (£7.6 million) increase in creative and marketing spending. In other words, return on investment (ROI) under the creative control of Simons was barely or non-existent.

It’s a sore lesson to learn for any brand — but one that was almost inevitable for a label with an accessible history. Calvin Klein’s core clientele look for premium yet affordable denim, underwear and fragrance. Not four-digit fashion-forward looks that slot nicely into the pages of high-end magazines.

Calvin Klein executives appeared to want the prestige of Chanel or Dior. But to have that, one needs a wealthy customer list. Individuals that will happily buy into the fantasy a luxury name and extravagant show peddles. It’s a strategy that works for heritage brands. But does it ring true for the majority of labels in business today?

Seasonal shows are the obvious route for any fashion designer. They’re an attention-grabber, a media magnet, a homage to tradition. What they most often aren’t are a way to sell clothes. Most luxury brands lose money on their ready-to-wear collections, revealed a 2017 report by investment company Exane BNP Paribas. But they don’t mind, for they use the show as a portal to sell expensive leather goods and beauty products. They recoup the costs via other means.

And those costs can be extortionate; usually anything between $200,000 and over $1 million (approximately £153,000 and £764,000) for a 10 minute show. New York-based designer Christian Siriano recently broke down his costs for Vogue, estimating a setback of between $125,000 and $312,000 (around £96,000 and £238,000) each season. This doesn’t include the time or money spent producing the collection. Multiply that by two (sometimes four), and you’ve got yourself an untenable annual sum. If you’re a brand that actually wants to make money off clothing, that is.

Small-scale presentations and runway ‘packages’ do exist to lower designers’ costs, but there’s still no guarantee of that sweet sweet ROI. So what to do? Influencers appear to be a big help. Dior’s saddle bag campaign — which saw Instagrammers with sizeable followings advertising the design — conjured up a social media frenzy. Tommy Hilfiger uses a similar tactic for his ready-to-wear collections, asking the likes of Gigi Hadid and Zendaya to co-design looks that are available for immediate purchase. As Fashionista reports, the key to longevity is to adopt a slow-burning method, asking a roster of diverse influencers to advertise items over the course of a few months.

Smaller brands with less connections and resources may do well to follow Misha Nonoo’s footsteps. “I don't think that anything that doesn't tick that box of being pure fantasy really has a place [on the runway] anymore,” the designer told Fashionista. So, since 2015, she has been showing collections solely on Instagram, targeting her customers in a convenient, long-lasting and non-alienating way.

Fashion brands routinely go down in flames after losing the battle between commerce and creativity. Banishing old-school tactics to stay afloat could be the way forward. Calvin Klein, at the very least, is betting on it.

Written by Lauren Sharkey.

Gigi Hadid is Facing Another Lawsuit For Posting A Photo of Herself to Instagram - Without The Copyright Holders Permission

The Model, Gigi Hadid has found herself in the middle of yet another copyright infringement suit for allegedly posting a copyright-protected photograph of herself to her Instagram account. The case, filed on Monday in a Federal district court was brought by the New York based company Xclusive Lee Inc.

Hadid’s Instagram account is followed by more than “forty-three million people worldwide” and Xclusive argue that Hadid ‘copied and posted the Copyrighted Photograph to her Instagram account without “license or permission.”

The image in dispute was captured of the model on “October 11, 2018,” by one of its photographers in New York city and according to court documents and evidence submitted by Xclusive “around “1.6 million people’” had “commented on or liked the photo” within “four days of the Model posting the image to her Instagram account.”

The complaint goes onto maintain that the ‘act of infringement was willful and intentional’ and claims that the model “had first-hand knowledge that copying and posting photographs, of herself or other subject matters, to her Instagram or other social media accounts that she did not properly license or otherwise receive permission from the copyright holder constituted copyright infringement.”

In particular, the company Xclusive call attention to an earlier copyright infringement suit, the facts of which Xclusive say are “nearly identical” to the facts of the present complaint - where in 2017 Hadid was named as a defendant in a copyright infringement suit against photographer Peter Cepeda, who took legal action against Hadid for posting a photograph of herself to her Instagram and Twitter accounts that was taken of Hadid on a public street in New York City without license or permission from the photographer Cepeda.

Xclusive go onto further allege that Hadid’s Instagram account currently has “at least 50 examples of uncredited photographs of Hadid in public, at press events, or on the runway.”

Hadid in the past has taken issue with the way that photographers, and in particular the way the paparazzi work, accusing them of “legally stalking” her and in a long post to her Instagram account, last October she stated that “for someone to sue me for a photo I found on Twitter (with no photographer’s name on the image) … is absurd.”

But is this course of legal action really as absurd as Hadid thinks?

The present case can be seen as part of a growing trend with regard to photographers taking a legal stand against social media influencers posting their images to Instagram and other online platforms without permission or credit. In 2017, The U.K. photo agency ‘Xposure Photos’ sued celebrity Khloe Kardashian for copyright infringement, after she allegedly posted an unlicensed photo of herself to her Instagram without permission for ‘making the image immediately available to her nearly 67 million followers.’ (The case was later settled outside of court).

Most copyright infringement cases of this type are commonly settled out of court, before litigation commences. However brands and influencers may still find themselves in hot water if they post an image to their social media accounts without permission, or the very least crediting the copyright owner.

Relating to the current suit, Xclusive is seeking the maximum amount of statutory damages for copyright infringement and an account of any “gains, profits, and advantages’ derived by the infringement”.

British Celebrities Make A Pledge to Disclose Social Media Ads Online

Sixteen British celebrities, including Rita Ora, Rosie Huntington-Whiteley, Alexa Chung and Ellie Goulding, have pledged to change the way they label social media posts after the UK’s competition authority crack down on the practice of influencers being paid for endorsing products without proper disclosure.

This morning, The Competition and Markets Authority (CMA) said it had secured formal commitments from 16 celebrities to state clearly if they have been paid or received any gifts or loans of products that they endorse. The pledge comes after an investigation from the Competition and Markets Authority (CMA) amid concerns that certain influencers were not clearly disclosing when they had been paid or incentivised to promote goods or services.

According to the CMA the term ‘influencer’ refers to bloggers, vloggers, celebrities and social media personalities. The CMA has also published a compliance summary for influencers to ensure that they are aware of consumer protection law.

The new guidelines will be of particular importance to the fashion industry (including brands, marketing agents, intermediaries and all involved in the supply chain). As the fashion industry often makes use of influencer marketing. Online endorsements from celebrities and influencers can help brands boost sales, as millions of fans follow their social media channels to see where they go on holiday, what they wear, which products they use and more. However, where such stars are paid or rewarded to promote a product in their social media feeds, consumer protection law requires them to disclose that they’ve been paid or incentivised to endorse a brand. Otherwise, they risk giving a misleading impression that a post represents their personal view about a product or service.

In the UK, for example a recent report discovered that 60 percent of Instagrammers learn about products and services on the platform and one in four people in the UK have discovered and bought products that they found on Instagram.

Andrea Coscelli, chief executive of the CMA, said: “Influencers can have a huge impact on what their fans decide to buy. People could, quite rightly, feel misled if what they thought was a recommendation from someone they admired turns out to be a marketing ploy.

“You should be able to tell as soon as you look at a post if there is some form of payment or reward involved, so you can decide whether something is really worth spending your hard-earned money on.

The enforcement action taken by the CMA has seen a number of social media stars pledge to be more transparent when posting online. It also sends a clear message to all influencers, brands and businesses that they must be open and clear with their followers,” says Coscelli.

The influential celebrities, named by the CMA who have acted in response to the CMA’s concerns, include singers Ellie Goulding and Rita Ora, models Alexa Chung, Rosie Huntington-Whiteley, and Iskra Lawrence. Former Coronation Street and Our Girl actress Michelle Keegan and TV reality stars Millie Mackintosh and Megan McKenna. The Only Way Is Essex stars Mario Falcone and Chloe Sims, and Fashion bloggers Dina Torkia and James Chapman. Warning letters have also been sent to a number of other celebrities, urging them to review their practices where some concerns have been identified.

According to the new consumer protection law compliance guidelines issued by the CMA for influencers when endorsing products, brands or services on social media.

Practices which do not go far enough to comply with the legal requirements, include:

• tagging a brand or business in either the text, picture and/or video of a post without additional disclosure

• tagging a gift from a brand in in either the text, picture and/or video of a post without additional disclosure

• using discount codes in a post without additional disclosure

• using ambiguous language without additional disclosure in a post (for example ‘thank you’; ‘made possible by’; ‘in collaboration with’; or ‘thanks to…’)

• unclear use of hashtags, for example:

• using #sp; #spon; #client; #collab; etc.

• adding #ad directly after the name of the brand or business (for example #[BRANDNAME]ad)

• when the disclosure (for example #ad, #advert) is not prominent because it is hidden at the end of or among other text and/or hashtags

• product placement where there is an associated (and undisclosed) payment or other incentive

• disclosing the a commercial affiliation only on an influencer’s front, home or profile page

Influencers found to be in breach of consumer protection law could face legal enforcement action from the CMA, local authority Trading Standards services.

Rihanna Sues Her Father Over Use Of The 'Fenty' Family Name

Photo Credit: Instagram/@Badgaldriri

According to legal documents, celebrity music icon Rihanna has filed a lawsuit in the California federal court, against her father to prevent him from exploiting her name and brand in an attempt she claims, to fraudulently make "millions of dollars" through his company Fenty Entertainment LLC.

The singer, whose real name is Robyn Rihanna Fenty, said her father, Ronald Fenty, and his business partner, Moses Perkins, have publicly expressed that their company, Fenty Entertainment, is affiliated with her and have even been making promises that she would perform at various venues around the world.

But Rihanna's father and his business have been lying and have no legal right to act on her behalf or to use her name, intellectual property or publicity rights, according to the suit.

"Mr. Fenty, Mr. Perkins and the company's fraudulent conduct is particularly egregious because they repeatedly have been told to stop making these misrepresentations, and to cease and desist all activity and efforts to exploit Rihanna's name and the goodwill associated with the Fenty brand," the suit says.

Rihanna uses the mark "Fenty" for a number of well-known businesses, including Fenty Beauty, as well as in connection with the sale of multiple products through affiliated entities, such as Fenty x Puma, according to the suit. The mark has since become "inextricably intertwined with Rihanna," including her reputation and business ventures, the suit says.

Rihanna's father and his business have been misappropriating the 30-year-old singer's name and knowingly misrepresenting that it is affiliated with her since at least 2017, according to the complaint, in an effort to capitalize on her brand recognition.

In one instance, a third-party entertainment company offered Fenty and his company an "exclusive deal" for Rihanna to perform 15 shows in Latin America for $15 million and two 15-minute sets at the Staples Center in Los Angeles and Las Vegas' T-Mobile Arena for $400,000, the complaint says.

Fenty "accepted" the deal on Rihanna's behalf, saying she "loved the idea" and wanted to get the deal signed, according to the suit.

But Fenty never spoke to Rihanna about the performances, and in March 2018, her manager told Fenty and Perkins to stop exploiting Rihanna's name and the Fenty mark and to stop acting on her behalf, the suit says.

In August, however, Perkins and Fenty tried to file an application with the U.S Patent and Trademark Office, claiming to have an intent to use the Fenty mark in connection with resort boutique hotels, but they only filed the application in an effort to mislead the public into thinking they were affiliated with Rihanna, according to the suit.

In December, Rihanna again sent Fenty and Perkins a letter demanding they stop their unauthorized use of the Fenty mark, their claims of affiliation with Rihanna, the false advertisements to the public and to stop saying Fenty Entertainment is affiliated with Rihanna or that she has sponsored the company, according to the suit.

"Judicial intervention is necessary because defendants have made clear that they have no intention of ceasing their fraudulent and infringing conduct," the suit says. "In the face of clear warnings, defendants continue to unabashedly perpetuate this fraud in an attempt to profit at the expense of Rihanna's rights."

The suit includes claims of false designation of origin, false advertising, violations of California's right of publicity statute and invasion of privacy.

Rihanna is asking for treble actual damages in an amount to be proven, all lost profits and costs for corrective advertising and attorneys' fees, among other damages claims.

Full case details: Fenty et al v. Fenty entertainment

Does Luxury Fashion Have An Overproduction Problem?

Earlier this year, four of Harrods’ store windows on Brompton Road were taken over by the young, independent label "Vetements" with the VETEMENTS logo featured on their fronts. The VETEMENTSxHarrods installation featured stockpiles of clothes donated by Harrods’ four-thousand employees. “The main purpose of this installation…to remind the general public about overproduction. In a world where fashion is so fast today, the windows are like a wake up: ‘Hello, slow down, people—it’s too much!” Says Guram Gvasalia, CEO of Vetements

According to Gvasalia: “The problem with sustainability today is that people look at it from the wrong perspective. Yes, where you produce and how you produce is super important. But what people are overseeing is something that’s right in front of our eyes: it’s about how much brands produce and how much consumers buy,” says Gvasalia “since my first-ever interview I’ve been saying this: the basic thing of economics is the supply meeting demand. If you go to a shop and you see something on sale, it means it’s been overproduced.” He continues that “for brands to become more sustainable today, they need to do one simple thing: have their supply meet their demand. It’s like throwing away food in a world full of hunger. Our planet is sick because of us, because we want more and more and more, without thinking of generations to come. He tells Vogue.

Gvasalia had allegedly asked other brands to donate unused stock to the installations, but claims that “Nobody wanted to take part. Not a single brand; really huge corporations. Everyone is afraid of admitting that they make more clothes than they can sell,” Gvasalia told Vogue.

Though fashion critic Sarah Mower poses the questions "can they have it both ways?" she attests. "Vetements is part of that same luxury system" says critic Mower. "The Harrods installation is there to direct customers to indulge in more consumption at the new Vetements in-house women’s store on the Superbrands floor, and in the men’s department in the basement."

BREAKING - Louboutin Comes Out Victorious in CJEU's Trademark Ruling Over Red-Sole Shoes

Image @ Louboutinworld

Christian Louboutin has come out victorious in today's CJEU ruling on the validity of the brands red sole shoe trademark.

One of the most discussed trade marks in the world of fashion and the subject of a number of legal disputes. Today, the courts have handed down a significant ruling, in what has been eagerly awaited decision between the famed Parisian fashion house and the Dutch shoe maker Van Haren that settles the question on whether the famed Parisian designers red sole trademark is a shape or colour mark.

Background

The red shoe sole discussion has been ongoing since 2012 when Dutch shoe maker Van Haren also released its own shoe with a red sole. Louboutin later sued the Dutch shoe maker for trade mark infringement. The case reached the Court of Justice of the European Union after Van Haren appealed against a 2013 Dutch court ruling that it should stop manufacturing and selling black and blue shoes with red soles. On 21 March 2016, the Rechtbank Den Haag (District Court of The Hague) referred the following question to the Court of Justice for a preliminary ruling to determine whether: ‘The notion of ‘shape’ within the meaning of Article 3(1)(e)(iii) of Directive 2008/95 ...is limited to the three-dimensional properties of the goods, such as their contours, measurements and volume (expressed three-dimensionally), or does it include other (non three-dimensional) properties of the goods, such as their colour?’

What has been at issue is whether or not "shape" includes colour. If it does, the mark can be ruled invalid.

Today's Ruling

That question has now been answered by way of this recent ruling.  

In today's judgment, the Court of Justice of the European Union (CJEU) confirms that the Louboutin red sole trademark "does not relate to a specific shape of sole for high-heeled shoes since the description of that mark explicitly states that the contour of the shoe does not form part of the mark and is intended purely to show the positioning of the red colour covered by the registration. " Therefore confirming the validity of the infamous Louboutin red sole. 

Notwithstanding this, the case also  provides further clarity on the trade mark directive in regards to the provision for absolute grounds for refusal of registration of signs consisting of shape.

In coming to the above decision the courts took the view that, "since the trade mark directive provides no definition of the concept of ‘shape’, the meaning of that concept must be determined by considering its usual meaning in everyday language." The Court points out that it does not follow from the usual meaning of that concept that a colour per se, without an outline, may constitute a ‘shape.’

“Furthermore, while it is true that the shape of the product or of a part of the product plays a role in creating an outline for the colour, it cannot, however, be held that a sign consists of that shape in the case where the registration of the mark did not seek to protect that shape but sought solely to protect the application of a colour to a specific part of that product.”

Confirming that a trademark sign, “such as that at issue, cannot, in any event, be regarded as consisting ‘exclusively’ of a shape, where the main element of that sign is a specific colour.”

Today's ruling of the Court of Justice of the European Union (CJEU) can be read as a significant win for the fashion designer in his attempt, to protect his trade mark in the Pantone colour red on high-heeled shoes, as it settles the matter on the issue of validity of the Louboutin red sole mark, by confirming that such mark does not fall within absolute ground for refusal of registration.

Implications

Essentially this can be seen as a win for the famous fashion designer against the shoe chain Van Haren. The Court of Justice of the European Union (CJEU) ruling will also have far reaching implications that relate to the interpretation of the trademark directive in this area.  

Now that the CJEU have given their ruling clarifying the contested point of EU law at issue, the case will head back to the Dutch national courts to decide - the outcome of which will affect the position of Louboutin’s distinctive red-soled shoes trade mark registration in Benelux region (Belgium, the Netherlands and Luxembourg) of Western Europe.

The case, Christian Louboutin SAS v Van Haren Schoenen BV (Case C-163/16) can be found here.

Supreme Counterfeits Are the World's Most Searched For Fakes

Image credit: Eva Al Desnudo @ Fashion, Law & Business

Recent research data collected by SEMrush, the search engine marketing solutions provider notes how the products of Supreme the high-end luxury street wear brand constitutes the most searched replicas all over the world followed closely by Michael Kors and Christian Louboutin. 

Their data reveals the growing consumer demand for counterfeit goods which could also explain the increasing rise in legal litigation in this area during recent years. From July through October 2017 alone, searches for fake items increased by 500 percent with the U.S. currently the country most interested in replica and fake items, and the UK and Germany following in second and third, behind.

In January earlier this year, Supreme won a legal battle before the Court of Milan, over counterfeit goods being sold in Italy, which lead to precautionary measures for injunctions and also over 120,000 products been officially been seized in what appears to be one of the most important civil enforcement operations of current times. 

The decisions recognised both reputation of it's trademark and the notoriety of the Supreme brand, which has recently signed co-branding agreements with brands such as Nike and Louis Vuitton and after a recent investment transaction deal with the Carlyle group the streetwear brand is estimated to be valued in excess of $1billion dollars.

Burberry Sues Target For Infringement Over Use of Check Pattern Design

Image credit: Eva Al Desnudo @ Fashion, Law & Business

British luxury fashion brand Burberry is suing US based retailer Target for alleged trademark infringements over its iconic checkered plaid pattern. Burberry believes Target has used its pattern on its own brand of eyewear, luggage and water bottles.

The lawsuit, filed on May 2 in New York against both Target Corporation and Target Brands, Inc., accuse them of selling a number of products that infringe on Burberry's check trademark. Items include eyewear, luggage, stainless-steel bottles and scarves that "represents a conscious disregard for Burberry’s rights in the check Trademark," says the complaint.

As the complaint explains, this was not first time that Target Corp had been put on notice of infringing the British brands rights. Burberry claims it sent Target a cease and desist in early 2017, and "by selling the Infringing Scarves within months of receiving Burberry’s cease-and-desist letter regarding the Infringing Eyewear, Luggage, and Bottle demonstrates Target’s intent to continue selling infringing merchandise without regard for Burberry’s intellectual property rights."

According to the British brand, "Target’s misuse of the Burberry Check Trademark on counterfeit and infringing merchandise has significantly injured Burberry’s hard-earned reputation and goodwill, and has diluted the distinctiveness of the famous Burberry Check Trademark," reads the complaint.

As per the complaint document images:  "left are images of genuine Burberry scarves bearing the famous check Trademark. On the right are images of two scarves offered for sale by Target and promoted as “Fashion Scarves.” Described in the complaint document as "Target’s copycat scarves."

Burberry also asserts that "Target’s conduct is likely to cause consumers to believe mistakenly that the Infringing Products are either affiliated with, endorsed or authorized by, or somehow connected to Burberry, or that the Infringing Products sold and promoted by Target are genuine Burberry products," adding that "Target’s well-publicized history of collaborating with popular brands and fashion designers to promote and sell Target-exclusive limited edition collections further heightens the risk of such consumer confusion."

Burberry seeks an injunction preventing Target from selling any infringing products, and in particular "using the Burberry check Trademark or any other reproduction, counterfeit, copy or colorable imitation of the Trademark on or in connection with any goods or services" says the complaint.  

Burberry is seeking monetary damages of $2 million for each trademark that it alleges Target has infringed, in addition to the cover of its legal fees.