If you’re following fashion month even in the slightest, there are a few things that we are almost certain you’ve seen or read about: Karl Lagerfeld charms at Fendi, personalized blankets at Burberry, Tom Ford jersey dresses, the entire Hood By Air ….. situation, and last but certainly not least, Jeremy Scott’s ode to fast food and SpongeBob for Moschino. This last one is where we’d like to focus your attention. Of one thing, we’re sure: this collection has generated a lot of buzz. Love it or hate it, the collection is a topic of my discussion as of late. And while we may not be wearing these pieces anytime soon, there are surely people out there (namely, street style stars like Anna Dello Russo who has already been snapped in the wool-cashmere dress) who have just been dying for a SpongeBob canteen bag with matching coat or a Happy Meal clutch. In fact, some of the wares are already shoppable and the double arches M backpack has already sold out. Apparently in Scott’s vision, what once simply housed a cheeseburger, fries, and a toy should now contain all of your personal items. This article is not, however, a comment on what it means that this collection will most likely do well in terms of sales. This article seeks to answer one thing: Does Jeremy Scott’s inaugural collection for Moschino give rise to any legal problems?
Scott sent many famous trademarks down the runway other than Moschino’s. First, some basics: A trademark is a logo, symbol, word, or phrase that is used distinguish one product from another. Trademarks make it easier for a consumer to identify the source from which an item comes. The first (presumably unauthorized) trademark sent down the runway was McDonald’s Golden Arches, which were notably reconfigured to match Moschino’s heart design. Others included Nickelodeon’s SpongeBob SquarePants on sweaters, bags, and outerwear, and Budweiser’s and Hershey’s in the form of evening wear (?!).
In sum, Scott used some very well known, protected marks. But before we cry trademark infringement, we have to first point out that many of these marks are altered to suit the brand. For example, the Hershey’s dress actually has “Moschino’s” wrapped around the model’s body as opposed to the actual Hershey mark. We also have to wonder whether there would be consumer confusion. There answer is probably not. Most consumers are not likely to think that a fast food chain or chocolate manufacturer has suddenly started to dabble in runway collections, or endorsed this creation.
So, that about covers the food and cartoon issues present in the Moschino Fall/Winter 2014 collection, but we’re not quite done with trademark law. Surely you noticed a couple of looks that might be seen on a Chanel runway like the red Chanel-esque suit with yellow piping. Another example, and more likely at risk for litigation, were the handbags with the quilted pattern and chain shoulder straps.
While Chanel may not have trademark protection for its quilted pattern in the U.S., there’s an argument to be had on whether there is trade dress protection if the design has acquired secondary meaning. In the case of Chanel, this would mean that consumers immediately associate the pattern with the Paris-based brand. Chanel is synonymous with a quilted pattern, so it’s a possibility, though not a certainty, that Chanel has gained secondary meaning. The reason we say it’s not a certainty is because courts often consider whether a certain item – or in this case, pattern – is available from numerous sources. When it is, that works against the claim of secondary meaning. The fact that a plethora of retailers have capitalized on Chanel’s famed quilted pattern just might work against it.
Even if protection is shown, though, we’re once again faced with the issue of consumer confusion. Now this is not as straightforward as with the fast food and yellow, spongy cartoon marks. It might be possible that a consumer would be confused as to the source of the red and yellow or black quilted handbags.
For every one of these brands, a better claim is probably trademark dilution. Under federal law, a trademark dilution claim can be brought only if the mark is famous. This is really a non-issue for the brands we’ve mentioned above; so, let’s focus on the type of dilution that would likely apply. There are two types of trademark dilution claims: dilution through tarnishment or dilution through blurring. Tarnishment occurs when a trademark is cast in an unflattering light. There might actually be a valid tarnishment argument here, depending on what you thought of Scott’s collection, but a better suited option is blurring, which occurs when the power of a famous mark is weakened by its use for dissimilar goods. So, for example, McDonalds would argue that by using its Golden Arches on clothing, the distinctiveness of the mark as associated with a fast food chain is diminished.
From Scott’s perspective, it’s still not time to fold yet, though. One defense available whether the claim against him is infringement or dilution is the parody defense. This defense is a favorite against infringement and dilution lawsuits, especially among so-called creative types. To successfully make a claim of parody, it would have to be shown that Scott was making some sort of comment on or criticism of the popular brands. For those who know Scott, or have seen some of his other collections, it would not be a stretch to say he could assert this defense. Think: he was building on these trademarks to bring about social commentary on the subject of consumerism.
Jeremy Scott is not new to litigation arising from his designs. And back when Franco Moschino was designing for his namesake label, he ruffled more than a few feathers, including Chanel’s when he spoofed their perfume on a t-shirt. So if Scott is hoping to carry on the brand’s knack for upsetting big brands, he might just be successful. It’ll be interesting to see how this all unfolds.
JENNIFER WILLIAMS is a recent law student graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. For more from Jennifer, follow her on Twitter.