Our friends over at Business of Fashion released a piece yesterday entitled, Did Moschino Dilute McDonald’s Trademark?, and so, I figured I would comment a bit further since we wrote the piece first. You may recall that we addressed the issue last week in our article, Just How Legal is Jeremy Scott’s Collection for Moschino?, in which we laid out the basic foundation of trademark law in the United States and just how it applies to Jeremy Scott's collection for Moschino. Since BOF has only taken on the McDonald's mark, we will limit this discussion to that mark, too. Note: there are obviously other trademarks at issue here with the various food-related brands depicted, as well as the strong references to Chanel, which may raise trade dress concerns. The most relevant questions essentially are: Did Moschino dilute McDonald's trademark and if it did, will McDonald's take legal action?
If we are judging by McDonald's response to the collection, the second question is far simpler than the first. In reply to our article about the potentially illegal nature of Jeremy Scott's collection for Moschino, the designer himself tweeted us what appears to be an endorsement by McDonald's. The fast food company posted an image from the Moschino show to its Facebook page, along with the following comment: "Looking good, MOSCHINO! Milan Fashion Week has never been so stylish." McDonald's also shared a link to the Moschino show on its site. Interestingly, the link was actually to the Italian design house's site, where one can also purchase looks from the collection (assuming they are not all sold out). So, it seems that there are no hard feelings between McDonald's and Moschino, even if Moschino's collection was commenting on/shedding an unfavorable light on the fast fashion, fast food phenomenon, or whatever the house's legal team would claim if slapped with a trademark infringement or dilution lawsuit. (A dilution claim would likely be more successful, as it, unlike trademark infringement, does not require a showing of a "likelihood of confusion" amongst consumers, and as we told you last week, most consumers are not likely to think that the fast food chain has suddenly started to stage runway shows, or endorsed this creation).
While we cannot know for sure, absent a legal proceeding between Moschino and McDonald's, whether there is actually trademark dilution here, I quote our earlier piece, which shed some light on this: "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, McDonald's would argue that by using its Golden Arches on clothing, the distinctiveness of the mark as associated with a fast food chain is diminished."
There's one additional piece here that neither we (in our earlier piece), nor BOF, has discussed and it is one that weighs pretty heavily in Moschino's favor: the business aspect of trademarks. Sure, we know all about the goals of trademark law and the need for brands to police their marks in order to prevent this valuable form of intellectual property from becoming generic, and thus, useless in terms of identifying a source of goods or services. But, what about the business of fashion, which I would argue, plays a pretty significant role here.
What has not been addressed is that it may not be in McDonald's best interest to file suit here, as it may actually benefit from its fashion treatment in two ways: 1 - Moschino is a luxury fashion house, and McDonald's is a bottom of the barrel fast food chain; the two are quite obviously on different levels, and because it is the high end brand channeling the low end one, the damage here is arguably a lot less than if the situation were reversed. Unlike Chanel, a historic design house with high fashion image to uphold (which may, in fact, be infringed by Moschino's "odes"), McDonald's could probably afford to up their image game just a bit, no? Thus, its connection to an Italian design house may not be the worst thing in terms of branding. 2 - Exposure. We have all heard that no press is bad press, and that same reasoning likely applies here. When was the last time McDonald's was in Vogue or Womenswear Daily or any fashion-related publication?
So, it worthy of noting that while litigation is quite often an option when trademarks are involved, it is not always the best business move, and that fact alone may be what is stopping McDonald's from taking Moschino to court. Thoughts?