image: MET Museum

image: MET Museum

Moschino has a thing for other brand’s branding. Dating back to the work of the brand’s founder Franco Moschino, the Italian fashion brand has been known for its innovative, colorful, often eccentric offerings, something that creative director Jeremy Scott has embraced from the outset of his tenure, which began in the fall of 2013. Recently, this has taken the form of the incorporation of others brands’ staples into its runway offerings — from the dishwashing detergent packaging and Budweiser branding that could be found in Moschino’s Spring 2013 menswear collection to the McDonald’s golden arches takeover of its Fall 2014 collection.

For Jeremy Scott, who has garnered himself the reputation for being “pop culture’s most irreverent designer,” what once simply housed a cheeseburger, fries, and a toy is now a purse. The graphics that can be found on a 6-pack of beer or on a bag of Frito-Lay chips can also serve as the print for a high fashion frock or carefully-tailored suit, all sans a formal collaboration relationship with the brands that serve as the basis for such cross-cultural commentary-by-clothing.

Looking specifically at the brand’s Fall/Winter 2014 womenswear collection, Scott sent many a famous trademark down the runway: there were McDonald’s Golden Arches, which were notably reconfigured to match Moschino’s heart designs; Nickelodeon’s SpongeBob SquarePants on sweaters, bags, and outerwear; and Budweiser, Cheetos, and Hershey’s packaging in the form of evening wear, albeit with some notable changes to the original branding. For example, instead of reading “Hershey’s,” the brown gown wrapped around model Jourdan Dunn says “Moschino’s,” and the same holds true for the Budweiser-esque cape that and mini-dress that was worn by Lily McMenamy.

In sum, Scott looked to some very well known brands’ and their graphics, ones that when seen by consumers bring to mind the original non-fashion brands and their non-fashion offerings, for his latest collection. Given that things such as brand names, logos, and product packaging fall neatly under the umbrella of legally-protected trademark and trade dress, it is worth wondering whether there are any legal implications in the mix for Fall.

By virtue of its use of other brands’ branding, there are certainly legal issues at play, but before we cry trademark infringement, there are factors worth considering, namely, whether or not there is any consumer confusion at play. This inquiry is critical, as potential confusion amongst consumers about the source of the allegedly infringing products is the central element in a trademark infringement claim.

Here, it is safe to say that consumers are not likely to think that a fast food chain or chocolate manufacturer has suddenly started to dabble in runway collections. However, likelihood of confusion is not that limited. Confusion can also come in the form of consumers believing that a brand authorized the use at issue or is in some way connection with it, which very well might be what is going on here. Given the rise in fashion collaborations of all kinds, there is a chance that consumers might believe that McDonald’s or Budweiser authorized Moschino to co-opt its branding for the seasonal collection.

Looking beyond infringement, for every one of these brands, a better claim is probably trademark dilution, which does not require a showing of consumer, but instead, centers on the unauthorized use of a famous trademark in a way that might tarnish or blur its distinctiveness, the latter of 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.

But even if any of the aforementioned brands can make a case for infringement or dilution, Moschino has a card to play: parody. 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, and argue that he was building on these trademarks to bring about social commentary on the subject of consumerism.

This all assumes of course that the brands at play here are bothered by Moschino’s use. Chances are, they might not be and instead, (if they are smart) will view the high fashionization of their branding as a boost to their own relevance and a priceless piece of marketing-by-runway.