Screen-Shot-2014-10-19-at-6.33.48-PM.png

Actress India Menuez recently showed up at a Chanel No. 5 event with what’s been dubbed the “Chanel Bagel Bag” on her arm. And since Karl Lagerfeld recently staged a Fall show in his very own supermarket, complete with aisles filled with Chanel-ized goods, you wouldn’t be completely crazy in thinking the bagel bag was, in fact, a Chanel design. Not to mention the fact that the bag has a Chanel chain and the famous interlocking Cs. But this purse is not a Chanel design. And it’s actually not a purse, either. The bagel comes from artist Chloe Wise, who has also made a Prada challah tote and a Louis Vuitton baguette and who says that the “Bagel No. 5” is actually a sculpture, not an accessory. No matter what, though, many were (and some likely still are) confused as to the origin of Bagel No. 5, which has us wondering just how legal the artist’s creation is.

It’s no shock that the interlocking C logo is trademarked. For the legally inclined (or those who are just interested), 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 idea is that when you see the interlocking Cs on a product, you know where it came from without any other information. And Chanel has quite successfully insured that you assume just that, at least in part because the brand is very litigious when it comes to trademark infringers.

So, we know that Chanel’s trademark was used, and unless there was a tête-à-tête between Chanel and Wise, it was used without permission. But before we cry infringement, there must be consumer confusion. Which leads us to two questions. Question number one: Is there confusion? Yes, since the sculpture is actually referred to by many as the Chanel Bagel Bag, we think it’s safe to assume that confusion could be shown. And question number two: Are there consumers? Not yet. Trademark infringement requires that goods in commerce are causing confusion, and as far as we can tell, Wise is not selling her bagel. At least not yet. Wise has said that when she does an exhibition, her works are sold through the corresponding gallery. “The bagel specifically will be for sale at the upcoming RX art auction in NYC,” she says.

Once the bagel is up for sale, i.e. in commerce, then, along with an infringement claim, Lagerfeld and company may also be able to claim trademark dilution. Under federal law, a trademark dilution claim is basically the argument that Wise’s bagel is diluting the distinctive quality of Chanel’s “famous” trademark. And 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 how the powers that be at Chanel feel about their precious logo being attached to a bagel with schmear. A better option, though, is blurring, which occurs when the power of a mark is weakened by its use with dissimilar goods. So, Chanel would argue that by using its logo, the distinctiveness of its mark as associated with the brand’s own goods is diminished.

But there is still something available to Wise that could save her should she find herself on the receiving end of a lawsuit: The parody defense. This defense is a favorite against infringement and dilution claims. To successfully make a claim of parody, it would have to be shown that Wise was making some sort of comment or criticism about Chanel. Considering that in explaining her use of luxury trademarks with baked goods, Wise has said, “Bread is a symbol for status and wealth. Think ‘the bread winner’ or the use of the term ‘dough,’” we’re betting that the parody defense would be utilized

For now, Wise doesn’t seem to think of all the hype surrounding her bagel bag as a portent of things to come (namely, a lawsuit). In fact, her tweets indicate that she’s happy to have caused some confusion: “My bagel sculpture : Bagel no.5. Urethane and oil paint with found hardware. Not by @chanel but stoked I fooled yall.” It’ll be interesting to see if Chanel’s legal team makes a move once Bagel No. 5 is up for auction. Stay tuned.

JENNIFER WILLIAMS is a law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. She is currently awaiting admission to the NY State Bar. For more from Jennifer, follow her on Twitter.