Balenciaga is being sued over that kitschy New York souvenir bag it showed as part of its Resort 2018 collection, which was unveiled last November. According to the complaint that New York-based City Merchandise, Inc. filed against Balenciaga this week in a New York federal court, the American arm of the Paris-based brand is on the hook for copyright infringement for its versions of the bag, which will set consumers back nearly $2,000.
City Merchandise – which describes itself as "one of the countries largest souvenir wholesalers.claims in the suit – claims in the suit (which was first reported by Fashionista) that Balenciaga has made use of an “original design” for which has maintained a copyright registration in the U.S. since February. (In terms of City Merchandise's copyright protection, it dates back even further to "late 2015/early 2015" when the company first created the bag, as copyright protection begins as soon as the original design is created and not when it was registered with the U.S. Copyright Office).
The company argues, “Clearly, the 'total concept and feel' between the designs on the Plaintiff's items and Defendant’s items are identical. The overall effect of the Defendant's knock-off design is not only confusingly similar to Plaintiff's authentic design, but it is virtually indistinguishable.” (Confusingly similar? The legally-minded amongst us might be wondering right about now if trademark infringement claims are also cited in the complaint, but they are not. City Merchandise makes a single claim and that is for copyright infringement).
“In or around February 2018,” City Merchandise states that it learned that Balenciaga "was engaged in manufacturing, advertising, marketing, distribution, and sale of the infringing products, which bear designs that are reproductions, counterfeits, knock-offs and/or colorable imitation that are striking and substantially similar to, and nearly indistinguishable from, [its'] design, which is depicted on NYC Skyline Souvenirs.” The allegedly infringing goods include Balenciaga's Bazaar shopping bags, wallets, and coin purses, which are being offered at hundreds of dollars more than City Merch's products, which retail for prices ranging from $5.99 to $19.99.
One of the most striking parts of the complaint comes when City Merchandise calls out Balenciaga and creative director Demna Gvasalia for its well-known penchant for copying. City Merch alleges, for instance, “Remarkably, in an article appearing in People magazine on December 20, 2017, Mr. Gvasalia candidly conceded that 'every garment I do is based on a garment that already exists; I don't invent anything new."
Moreover, it claims, “Significantly, Defendant has been repeatedly publicly scorned in fashion magazines and by online fashion observers for its willingness to copy the work of others.” It cites Balenciaga’s “copy” of the Ikea classic blue tote bag and its adoption of the Ruff Ryder’s logo as examples.
City Merchandise claims that Balenciaga’s “acts are willful, intentional, and purposeful, and committed with prior notice and/or knowledge of [its] copyright,” and as a result, it is entitled to monetary damages, including enhanced damages for Balenciaga’s “willful” infringement, as well as injunctive relief, which would force the brand to immediately and permenant cease all sales of the bags - and likely even recall the bags that are currently being offered by Neiman Marcus, FarFetch, the LVMH-owned platform 24 Sèvres, and MyTheresa (in terms of sales in the U.S., that is).
It is certainly worth noting that this case - which started as a copying call out on Twitter from Fashionista editor in chief Alyssa Vingan (whose Tweet is included in the complaint) - appears to be one of the more merited claims of copying in the current ecosystem that is click-baity Instagram copying call-outs, which, as the legally-trained amongst us know, tend to be little more than unmerited claims that would never withstand a motion for summary judgment.
With that in mind, I would be willing to put my money on a quick/quiet settlement here because Balenciaga's bag does look "substantially similar" (the general standard for copyright infringement) to City Merchandise's bag.
Nonetheless, there is factor that may be in Balenciaga's favor: Since we are not talking about Balenciaga's hot-selling Triple S sneakers here and considering that most of the Balenciaga New York City bazaar bags that are currently available for purchase have had their prices slashed quite a bit, there is a good chance that its expensive versions of the NYC souvenir did not sell in huge volumes (at least not in the U.S., where the court has jurisdiction to order damages). This could make it possible for Balenciaga to offer City Merchandise some smallish sum of money to settle the case and thereby, enable the design house to avoid the greater expenses of litigation.
But stay tuned ...
A representative for Balenciaga's parent company Kering said that Balenciaga has “no comment” on the pending suit.
* The case is City Merchandise, Inc., v. Balenciaga America, Inc., 1:18-cv-06748-JSR (SDNY).