"It's a great huge game of chess that's being played - all over the world - if this is the world at all, you know. Oh, what fun it is! How I wish I was one of them! I wouldn't mind being a Pawn, if only I might join – though of course I should like to be a Queen, best." Lewis Carroll, Through the Looking-Glass.
There is almost nothing original in the current fashion industry and there are very few designers out there creating original products. It is therefore quite easy to understand why designers would try and protect their works.
What's instead pretty difficult to understand is why specific houses sue somebody for stealing their work when they in return have been pilfering somebody else's creations. As you may remember, D&G sued an eponymous Fife-based garage a while back, though in their career the design duo often turned to pilfering precise references, such as entire Schiaparelli's designs for one of their collections (but Schiap being dead and the house bearing her name lying dormant nothing ever happened copyright-wise...).
Recently, though, we had a new interesting situation, that we may define as the strange case of the checkerboard pattern.
In April, the European Union's General Court cancelled two Community trademarks registered by luxury retailer Louis Vuitton, after a challenge by German retailer Nanu-Nana that asked to declare them invalid.
The registrations (both for leather products and bags) covered a dark brown and beige pattern (the Damier Ebene pattern, granted registration in 1998) and a black and grey pattern (the Damier Azur pattern, registered in 2008).
While protecting itself from counterfeiters, Louis Vuitton argued that the pattern was complex, particular and original, but the court called them "banal and basic", dismissing them as commonplace figurative motifs. Trademark registrations can indeed be challenged when they are not distinctive, which means it is simply not possible to claim monopoly on a checkerboard pattern.
While Louis Vuitton's claims sounded pretty silly (what would have been the next step for them if the court had ruled in their favour, suing the chessboard illustrations in Lewis Carroll's Through the Looking-Glass?), the company's argument sounds even more ridiculous if we consider how Marc Jacobs' Spring/Summer 2013 collection for Louis Vuitton's featured several yellow and white chequered looks and accessories – a motif Jacobs claimed had been borrowed from the grids of artist Daniel Buren, but a motif that was popular in the '60s already, as proved by some designs on the pages of Vogue.
In the last few years, trademark infringement cases have multiplied: in February Adidas accused Isabel Marant of copying the heel tab, that is the coloured portion on the outer back heel, of Adidas's Stan Smiths.
In April Yves Saint Laurent filed a lawsuit against What About Yves founder Jeanine Heller, for its popular parody "Ain't Laurent Without Yves" slogan T-shirts (sold since January 2013 even in retailers such as Parisian boutique Colette), something rather ridiculous if we think about how Creative Director Hedi Slimane has been busy behaving like a remixer and hasn't introduced a single new design in Saint Larent's recent collections.
Last year Heller also tried fighting off similar accusations after producing a top that subverted the Chanel logo combining it with the Ghostbusters sign.
What to do then with the Proenza Schouler Vs Forever 21 case? Given the similarities between some of the designs in Lazaro Hernandez and Jack McCollough's collections and other designers' collections it seems rather useless to go after Forever 21 for producing a satchel bag that looks very similar to their PS1 messenger bag, considering also that they never registered for trade dress their bag and do not have design patent protection for the product.
Apparently in our age of "borrowing", "pasting", and "paying homage", imitation is not the sincerest form of flattery, especially when big companies are involved. It is indeed more difficult to prove an independent artist has been ripped off by a powerful company. Last Summer Roberto Cavalli was for example accused of infringing copyright on a group work created in San Francisco's Mission district by graffiti artists Jason 'Revok' Williams, Victor 'Reyes' Chapa, and Jeffrey 'Steel' Rubin. The artists claimed their work was used in Just Cavalli's Graffiti collection and was also altered by superimposing the Just Cavalli name in spray-paint style.
It's somehow tragicomic, but the fashion industry with its infringing copyright and suing routines sounds like "a great huge game of chess that's being played all over the world" to quote Carroll's Through the Looking-Glass. The solution? Coming up with something that is genuinely and inherently distinctive: courts can indeed easily defend unusual and memorable designs and attribute them to its original inventor.
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