I wrote about Thursday Friday awhile back. TF is the company that screen prints Hermes Birkin bags on canvas totes. The Birkin lookalike "Together" bag was featured in the New York Times twice and at one point there was a three month waiting list. [No, I'm not talking about the Hermes bag...that waiting list is longer!] Since then, TF has settled a lawsuit brought by Hermes after their motion to dismiss was denied [Case number: 1:11-cv-00580-AKH] and then expanded their collection to include canvas totes with Mui Mui's Hobo bag and Chanel’s 2.55 Reissue bag.
Interestingly enough, since the launch of the successful Together bag, imitations have been showing up on eBay, and apparently, TF trademarked the "Together Bag."
I just came across an interesting statement from TF's creative director Roni Brunn. She says, "I admire courts that ensure trademark protection at most minimally interferes with commerce or the arts. Freedom of expression and humor are hugely important for both artists and entrepreneurs. I believe our bags are protected by the fair use and parody exceptions to trademark protection. It's self evident that Thursday Friday does not produce counterfeits, and I doubt there's a jury that would find a likelihood of confusion between our products and anyone else's. Still, as much as I'm fascinated by trademark law, I do hope we can avoid any lawsuits."So, fair use and parody are her defenses, huh?
Turns out, TF may not actually need a defense. Following its settlement with Hermes, TF maufactured the Mui Mui-lookalike. This bag certainly lacks the "secondary meaning" standard that must be established in order to claim trade dress on a product. Trade dress protection stems from the characteristics of the visual appearance of a product and if you can establish that your product has "secondary meaning" [aka is inherently distinctive in the marketplace], you will likely prevail in winning a case. Hermes surely would have been able to establish this for its iconic Birkin bag, but can Mui Mui do it for the Hobo bag? Probably not and as such, there is not a Mui Mui v. TF suit and the bag is still for sale. Also, it is important to note that the TF bags do NOT have any of the companies' names. The TF bags don't say Chanel or Hermes or Mui Mui, allowing them to largely avoid trademark infringement suits.
In terms of the quilted bag printed on canvas, the Chanel lookalike, this is riskier for TF. Chanel is an amazingly established brand and their quilted bags can be argued to have secondary meaning. TF's "Diamond" collection, the one that includes the Chanel lookalikes has not be available for very long; so, we will see if they decide to bring a suit against Thursday Friday. Stay tuned...