Another day, another designer copy being sold by Nasty Gal, and this time, the copies that fast fashion e-commerce retailer was (and in one case, still is) pedaling may be illegal. First up: that Expletive Ring Set that Nasty Gal was selling until recently. It was a copy based on the original design of New York-based jewelry designer Wendy Brandes. Far from unknown, Brandes was the 2012 winner of Fashion Group International's Rising Star Award for fine jewelry, and her pieces have been spotted in various Vogues, InStyle, Elle, W Magazine and Style.com. The F#@! design that Nasty Gal was selling (and reportedly bought from an unidentified supplier by Nasty Gal) is actually from Brandes' diffusion line, WendyB, which has offered the "Swear Rings" since 2008. (You can shop the real thing on Brandes' site). So, what potentially makes this case illegal, as opposed to the countless other copies on Nasty Gal's site? Well, trademark law may be at issue.
According to a post on Brandes' site dating back to 2011, she was in the works of trademarking the F#@! design, as a stylized word mark (aka protecting "F#@!" in the font she uses for the rings). While I have been unable to find any such registration, Brandes may still have a common law trademark claim since the rings that were for sale on Nasty Gal's site use the same font as Brandes' original design. However, given the nature of common law trademark protection (as opposed to federal trademark protection), Brandes may have limited recourse. Unlike a federal trademark registration, a common law trademark only extends to the places where a trademark has been used in commerce. This gets a bit tricky as Nasty Gal isn't the manufacturer of the rings; it is the third-party retailer. It is also less than completely straightforward as Brandes' business consists of stocking in both brick and mortar locations and online. Her e-commcerce business arguably reaches to California, where Nasty Gal is headquartered. Also worth noting: Brandes stocks at a Los Angeles-based boutique. So, the common law trademark requirements may be met, but that's actually for a judge to decide.
When we caught up with Brandes, she confirmed that Nasty Gal took the design down quite quickly after her team contacted them directly and was very cooperative. According to Brandes, "I think some of these retailers are getting more responsive to complaints from small designers. Maybe they're starting to recognize that it's bad for their image. In light of that, I recommend making personal contact before going on an all-out social media campaign." A tactic that has proven somewhat fruitless with Nasty Gal in the past.
Up next: Austin-based designer Jamie Spinello's original "Art Deco Revival Necklace" design, which she created in 2012. Spinello's attorney sent Nasty Gal a cease and desist letter to which Nasty Gal pulled a classic Forever 21 move, claiming to have "no knowledge that this necklace was allegedly a copy of her design" and blaming its supplier, saying: "Nasty Gal did not create or manufacture the necklace." Catch more on this story and Nasty Gal's somewhat troubling responses here.
And last but not least is Flutter By Jill Golden's Double-Triangle Necklace, which is currently being stocked by Urban Outfitters. If you're not familiar with Golden, her NYC-based brand consists of a range of hand-made costume jewelry inspired by her travels. Interestingly, Nasty Gal's "Love Triangle Necklace", which appears to be yet another item from an overseas supplier, looks pretty familiar. I reached out to Golden for a comment and am waiting on a response. Nasty Gal's response will likely be the same as in the Spinello case. Disclaim any knowledge of wrongdoing and blame the supplier.
The question is, thus, at what point does a retailer (especially one with a pattern of selling allegedly copyright-infringing goods) lose the right to claim ignorance of copyright infringement and Golden's necklace (left) & the one that is currently being sold by Nasty Gal (right) subject to some form of liability? That's a topic for another day, but more to come ...