In a previous post in June 2017 we briefly analysed the power of stripes, a pattern associated in the Middle Ages with evil and transgression, in connection with a trademark lawsuit filed by Off-White's Virgil Abloh against Paige Denim (Off-White LLC v. Paige, LLC f/k/a Premium Denim, LLC, 1:17-cv-2904 (SDNY)). As you may remember, the suit followed Paige's cease and desist letter to Virgil Abloh's brand sent in January 2017, that demanded it to stop using what Paige claimed was their diagonal striped logo (that had received federal trademark protection). On top of that Paige also filed a petition to cancel Off-White's existing trademark registration, arguing that it was too similar to Paige's pre-existing trademarks.
It looks like diagonal stripes are still exercising their diabolical power on Virgil Abloh: Norwegian sportswear brand Helly Hansen has indeed filed a suit last week in the Illinois Northern District Court ("Helly Hansen AS v. Off-White LLC, 1:18-cv-04755 (N.D. Ill)"), claiming trademark infringement, unfair competition and a violation of the Illinois Uniform Deceptive Trade Practices Act.
The company claims that Off-White infringes on a striped mark that looks "confusingly similar to Helly Hansen's HH Stripe Logo" (the HH Stripe mark is protected by federally registered trademark no. 1,454,335), applied to good and services that also look very similar to those offered by Helly Hansen. Helly Hansen's collections often include tops and leggings with bands decorated with parallel striping around the shoulder area or along the sleeves and legs. The company has been constantly using this pattern in the U.S. for over 40 years, so it is now seeking monetary damages (to be determined at trial), plus preliminary and permanent injunctive relief, which implies that Off-White would be immediately and permanently barred from using the allegedly infringing logos and would have to destroy all products, labels, signs, prints, advertisements, and other articles deemed as infringing Helly Hansen's trademark rights. On top of that Helly Hansen wants the U.S. Patent and Trademark Office to cancel two of Off-White's federal trademark registrations.
As you may remember from that previous post, Off-White applied for and received at least two federal trademark registrations from the U.S. Patent and Trademark Office: Abloh registered a mark including fifteen alternating parallel diagonal lines of varying sizes forming the shape of a rectangle (filed in class 35, which extends to "Retail store services" and "online store services"); a mark alternating fifteen parallel diagonal lines forming a square and being used on apparel for men and women; and a final logo consisting of nineteen alternating parallel diagonal lines of varying sizes forming the shape of a rectangle (filed in classes 18, that is bags, and 25 that is apparel for men and women).
Somehow the solution for the defendants (Off-White is represented by Brian Igel of New-York based law firm Bellizio + Igel; Helly Hansen AS is represented by intellectual property litigator and client counselor Christopher James Fahy, partner at K&l Gates LLP) and the judge may not be so easy. Yes, both brands use stripes, but Helly Hansen's stripes are not as thick as Off-White's and they are applied to technical sportswear; Helly Hansen is also a sportswear company with a price point lower than Off-White's. As a design label, Abloh's company may sell a T-shirt at around €320.00, while a hoodie may be priced between €620.00 and €700.00 (though Abloh dreams of being affordable, most of the kids he would like to design for, can only afford copies...). In a nutshell, consumers may not be confused so easily by the designs offered by the two brands.
Besides, it seems rather surprising that Helly Hansen waited so many years before filing the suit, considering that Off-White has been using the stripes since 2013. Maybe the solution for Helly Hansen would have been to get all the companies that have been using stripes together (from Paige to Sheffield-based graphic design company Designers Republic that has been employing black and white stripes in its works since 1986) in a collective action against Abloh's Off-White (even though this would mean they would have to sue each other first for the similarities in their logos...). Though in a way you may just dismiss the entire issue by highlighting that most combination of black and white lines are rather simple and can not be considered as unique logos worthy of trademark protection.
So it looks like, though almost banal, black and white stripes will keep on giving a headache to judges, while fashion-wise the entire story may prove that we may not be anyway near to solve the issue of plagiarism in fashion. After all, many lawsuits could be avoided if longer and more in-depth researches into brands and logos were carried out to produce more exclusive and unique designs.
Comments