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Tuesday, 1 April 2014

Louboutin Loses Yet Another Trademark Case Over Red-Soled Shoes

The court puts its foot down - Fashion designer Christian Louboutin loses trademark protection in three countries for his distinctive red-soled shoes, leaving competitors free to follow in his footsteps.



Christian Louboutin, whose shoes along with Jimmy Choo, Gucci, Manolo Blahnik, Walter Steiger and Alexander McQueen is one of the most expensive and sought after shoe brands in the world, has just lost trademark protection for his distinctive red-soled shoes, in the Benelux, a three-county region including Belgium, the Netherlands and Luxembourg, in Western Europe.

The case, Christian Louboutin v. Van Dalen Footwear BV, AR 2013-6154 concerns infringement proceedings brought by Christian Louboutin against Van Dalen Footwear B.V. (a Netherlands retail store) for allegedly infringing its registered trademark by selling red-soled shoes. A court has cancelled Louboutin's registered trademark 0874489, granting Van Dalen's counterclaim for invalidity while denying Louboutin's infringement claim.

Judge Natalie Swalens of the Brussels District Court determined the decision March 20th last month, the court held firstly that Louboutin's trademark constitutes a shape mark rather than a colour mark. As such, it had to comply with the exclusions provided by article 3(1)(e) of the Trade Mark Directive, a provision of European trademark law that excludes the registration of any signs consisting of shapes that give substantial value to goods. The provision is intended to prevent the securing of a permanent monopoly in the technical, functional or aesthetic characteristics of a product or in the type of shape design which should be protected for a limited period of time, under design legislation, and thus, absent those rights should be free for other competitors to use. 

Importantly, trademarks and designs have a different legal scope; trademarks enjoy protection that is unlimited in time, rights to designs are limited. Whereas a trademark seeks to protect the identity of the origin of the goods and services, designs seek to protect the goods (and the substantial value of their appearance) in their own right
 Based on the evidence brought by Van Dalen Footwear (represented by Simmons & Simmons LLP,Amsterdam), the court found that the red sole gave the goods their substantial value, as consumers had stated that they would not have paid as much for their shoes if they had not had the red soles. As such, the red sole did not qualify for trade mark protection. Secondly, the court concluded that Louboutin's trademark lacks a distinctive character because red-soled shoes are common on the market, generally non-traditional trademarks for shapes and colours are only registrable if they have acquired distinctiveness through extensive use.

One would imagine that this comes as another blow to the iconic brand. From a business perspective, the case highlights yet again, the importance of the correct brand strategy for management of high end fashion brands. This is not the first time that the brands signature trademark has been invalidated in Europe. The French Supreme Court, Commercial Chamber, Christian Louboutin v. Zara France, Decision of 30 May 2012 also ruled that Christian Louboutin's trademark, representing a red sole, was invalid for lack of distinctiveness, It also rejected Louboutin's unfair competition claims, stating, that the reputation of Louboutin's red shoe soles rather relate to the concept than to the trademark, asserting that Louboutin could not claim a monopoly on the concept of having red soles on women's shoes, despite claims brought by Louboutin that by using red soles, Zara would be unduly benefiting from Louboutin's investments.

Interestingly, the Belgian approach and the French approach stand in contrast to the US position in Christian Louboutin SA v Yves Saint Laurent Am. Holding, Inc, US Court of Appeals, Second Circuit, No 11-3303-cv, 696 F.3d 206 (N.Y.) 5 September 2012. Where the US Court of Appeals held the red sole mark registered by Christian Louboutin to be valid and enforceable when limited to a red lacquered outsole contrasting with the colour of the rest of the shoe. This may because unlike the EU, The U.S offers a much more limited scope of protection for fashion designs, while countries in the EU have the availability of design protection for both registered and unregistered fashion designs under EU Design Regulation, as well as copyright protection for certain aspects of a design and also trademarks. The U.S does not offer the same tailored system of protection, and as such, the main source of protection available for fashion is through Trademarks.

This is one of the few court decisions addressing how fashion-industry participants may protect the distinctive features of their designs. The iconic brands monochromatic red sole shoes have been sold since 1992, and can sell for more than £4,000 a pair. The Louboutin case is a good illustration of the difficulties in registering aspects colour and shape marks as trademarks, and of protecting trade dress under trademark and unfair competition laws. Courts have shown themselves to be quite strict in determining the validity of non-traditional trademarks, and under the influence of European Union law, the case highlights that the requirements for the validity of non-traditional trademarks, such as shape marks is quite challenging.

In the world of fashion, how brands protect themselves across international boundaries is big business.  One of the strongest appeals of luxury brands is the exclusivity and status that comes from owning a designer product, whether it be shoes, a bag or clothing that is instantly recognisable. In an industry where copying is rife, intellectual property and in particular trademark protection is usually a fashion brands most important and valuable asset.   

Trademark loses for luxury brands mark the end of exclusivity.

The success of fashion is based on commercial strategies. It was only recently that Gucci lost the rights to use its iconic interlocking GG trademark in the UK. Trademark loses for luxury brands mark the end of exclusivity. If anyone can wear a red sole shoe then what makes it exclusive? The significance of this is huge, Not only do trademark loses dilute the significance of the brand, but mean the blurring of the boundaries of social class, through which fashion products become more readily available to everyone.

As brands strive harder to build exclusivity; it will be the consumer whom feels the impact most detrimentally.

Without the ability to claim exclusive use of the red sole, there’s little to separate the company’s products from its competition, this may spur more innovation from luxury brands in the form of their designs. But, as brands strive harder to build exclusivity; The Goss-IPgirl suspects that it will be the consumer whom feels the impact most detrimentally.

It may come as no surprise that the Goss-IPgirl, does like her Louboutins and with the financial stakes so high, she wonders with passionate curiosity if the Louboutin brand will be appealing this case? The judgment if anything shows that Louboutin may have chosen the wrong strategy for the protection of its red soles. If Louboutin had registered a colour mark for the colour red, only for soles of high-heeled shoes in class 25, or gone down the design right route it may have had a more successful outcome in this case. 

By Tania Phipps-Rufus

Is a Visiting Lecturer in IP and Doctoral PhD candidate at the University of Bristol, She is also a Researcher on Fashion and IP for the centre for Copyright and New Business Models in the Creative Economy, University of Glasgow.

Wednesday, 12 March 2014

Keeping companies in check: British Brand Burberry sue Korean underwear maker for violation of trademark design pattern.

British heritage brand Burberry has filed a lawsuit against Korean underwear maker SBW for allegedly copying the British luxury brand's trademark check patterns. Burberry is seeking 100 million South Korean Wons (£56,488) in damages from SBW for breach of its trademarked designs.

Burberry Korea said it issued a warning against the company for infringing its trademark rights in early January when the local underwear maker sold a slew of men’s boxers with the check patterns under the brand TRY.

Burberry is fiercely litigious, and this is not the first time the brand has faced problems in Asia. This will be the 18th lawsuit filed by the British fashion company since 2011. The UK-based luxury brand has held a trademark right for its iconic check pattern at the Korean Intellectual Property Office since 1998. 


A spokeswoman from Burberry confirmed today that “as a global luxury brand, Burberry considers the protection of its trademarks vital to the health of its business and brand. Burberry protects both its brand and its customers by defending its intellectual property rights and will always act against the abuse of its trademarks."
SBW has responded saying. "We will consider what actions to take after seeing the reasons for the complaint (from Burberry)."
The Goss-IPgirl notes, that Burberry certainly seem to be keeping companies in check. Some industry insiders question whether Burberry, whose sales have been slipping, is out to create momentum through the legal cases?

We’ll wait to see how this one unfolds… 

Monday, 10 March 2014

Iris Van Herpen "Biopiracy" - Paris Fashion Week - who owns our genes? Fashion, Biotechnology and Intellectual Property

On Tuesday, last week Iris van Herpen unveiled her Biopiracy Collection, her most ambitious and largest collection to date, at Les Docks - Cité de la Mode et du Design in Paris. Called “Biopiracy” The collection by Iris Van Herpen threw a spotlight on the intersection of intellectual property, ethics and biotechnology.  The designer writes on the invitation for the showcase of her collection,

“In the recent past, patents on our genes have been purchased. Are we still the sole proprietor of our bodies? From this question arises a sense of arrested freedom in one's most intimate, solitary state. …” 

For the show, the experimental designer collaborated with artist Lawrence Malstaf, a specialist in the interaction between biology and physicality, too construct an installation, where models were suspended in the air in embryonic transparent, seemingly weightless plastic and shrink vacuum packs. Calling into question the naturalness of systems such as IP that allow for the ownership of living substances occurring in nature, such as our DNA & genes, through the legal mechanism of a patent.


 “Biopiracy” is a term well known in the legal world, that has emerged to describe a practice that concerns the ways that corporations from the developed world claim ownership of, or otherwise take unfair advantage of, the genetic resources and traditional knowledge and technologies of developing countries, and biological, scientific and cultural assets are “pirated” commodified and then commercially exploited usually without compensating the individuals, indigenous peoples or countries from which the material or relevant knowledge is extracted or harvested.

Her collection gets us to think about the intersection of nature, science, IP and social justice.


Did Moschino’s Debut Fashion collection Dilute McDonald’s Trademark? An EU & US perspective

Drawing a comparison between fast food and fast fashion, Moschino's new creative director, Jeremy Scott, took inspiration from McDonald's for his debut runway collection during Milan Fashion Week. The capsule collection that is being lapped up faster than you can say ‘milkshake with fries,’ turned McDonalds Golden trademarked arches into a curved heart-shaped 'M for Moschino and, weighing in at more than just a few pounds, Moschino's red, happy meal style quilted leather bags, served up on a red tray have already sold out at a price of $1,265.
Nonetheless, despite the success of the debut collection, the striking iconic trademarked references used, in particular left many of us questioning whether there were any legal implications for trademark dilution or infringement. This legal academic, after Anya Hindmarch supermarket sweep ‘counter culture couture collection’ at London Fashion Week, had been given serious though to the legalimplications of Andy Warhol style pop culture references used in fashion, and on this very topic, this week over at the Business of Fashion, a very interesting and well written article  by Toronto based lawyer Anjli Patel addressed just that… ‘did the house dilute McDonald’s famous trademark?

Focusing in particular on Moschino’s use of the ’M’ logo and colours across their collection, in her article written from a US perspective, Patel notes that: “in the United States, where McDonald’s is headquartered, the owner of a famous mark that is distinctive (in this case McDonald’s) has recourse against another party (Moschino) for using a mark in a commercial context that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of whether any confusion, competition or actual economic harm occurs.”

Trademark dilution prevents others from using a mark in a way that would lessen its uniqueness. On the legal concept of dilution, Patel highlights that: “Dilution by blurring occurs when an association arising from the similarity between a mark and a famous mark impairs the distinctiveness of the famous mark, [from being identified as the a single source of its goods and services]. The law lists six factors that a court may consider in making its decision. One factor is the degree of similarity between the mark and the famous mark. For example, other than curving inwards the colours, scale and style of the heart-shaped motif are very similar, if not identical, to the Golden Arches.” Another factor “is whether the user of the mark intended to create an association with the famous mark…because of how the heart-shaped motif [is] presented in the show. [For example] applied to[the] handbag, which is placed on a fast food serving tray.” Coupled with fact that Moschino’s Fall/Winter 2014 collection is titled "Fast Fashion - Next Day After The Runway," drawing an association with fast food. The suggestion seems likely.


Putting US law aside for a moment, under European law McDonald would also be entitled to prevent Moschino from using the "M" Golden arches trademark because of their reputation in the Community, According to EU law use is prohibited if the unpermitted use “is detrimental to the distinctive character or the repute of the trade mark” or “takes unfair advantage of” the mark. In both the US and EU a dilution claim would most likely be successful, as it, unlike trademark infringement, does not require a showing of a “likelihood of confusion” amongst consumers, and it seems unlikely that most consumers are going to associate or confuse McDonalds with high fashion.

Yet, this is all speculative as no actual legal proceedings have been brought, and it seems that no legal proceedings are likely to be brought the Goss-IPgirl came across a series of tweets by McDonalds that appear to be endorsements from the fast food chain, that puts to bed any concerns about legal proceedings.

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.” 

The company also tweeted from the McDonalds official twitter page at ElleMagazine with the comment “the new fashion trend is spreading fast round here too.”


And also tweeted a comment (later retweeted by Jeremy Scott) “Do you ever look at yourself in the mirror and think, this outfit is missing a #Bigmac.”


Food for thought? I think it’s easy enough to answer that question. 

Even though no legal proceedings have been brought, it is noted that if legal action were to be taken, Moschino may be able to rely on the defence of parody, “something which has artistic merit and critical function, and is covered by law. But in the US as “the law does provide that a parody is an exception to dilution, but only if the defendant does not use the parody as a designation of source for its own goods and services. In other words, the exception does not apply when a parody is used as a trademark, and this is exactly what Moschino has done.”

In the EU & UK the law has less of a sense of humour? And under trademark law there is no defence of parody. The fact that a sign is a parody is not a specific defence to trade mark infringement under UK law, and a parody of a trade mark may also be infringing under s 10(3) of the UK Trade Marks Act 1994 if it causes trade mark dilution, or the ‘tarnishment and blurring’ of a trade mark.  This occurs when a similar sign has taken unfair advantage or caused detriment to a well-known trade mark. Lady GaGa v Lady Goo Goo, 2011 EWC


Trademarks, Copyright and Pop Culture Appropriation During London, Paris and Milan Fashion Week

The Zeitgeist this year, across London, Milan and Paris Fashion week has certainly been pop culture, and if fashion enthusiast were hungry for something different, they got just that this season, with a super-size portion of mass-produced visual commodities of popular culture in a similar way to Andy Warhol’s Campbell's Soup Cans.
Each fashion week was inspired by the supermarket and based, at least in part on the concept of consumerism. In particular, designer Anya Hindmarch’s ‘Counter Culture,’ collection during London Fashion week made use of some familiar household names. Jeremy Scott’s collection for Moschino during Milan fashion week mixed fast food with ‘Fast Fashion,’ and Karl Lagerfeld's collection for Chanel, during Paris Fashion Week, took us to the 'Chanel Supermarket,’ through the Mise-en-scène and set of his fashion show.
Pop art culture, famous for doing away with the traditions of fine art by including imagery from mass culture such as advertising, film and comics; is an art movement that emerged in the mid-1950s in Britain and later in the United States, so the Goss-IPgirl finds it fitting that British bag designer Anya Hindmarch kicked off London Fashion week, with her interpretation of the supermarket, through her collection ‘counter culture.’ Couture.
She explains 'I wanted to treat the everyday ordinary in an extraordinary way.' But she did a little more than just that...
A variety familiar trademarks and images protected by copyright strutted their stuff down the runway, during the bag designers 1970s supermarket sweep. Daz, Frosties, Kellogs, and custard creams, vintage cereal boxes, icon symbols such as Ship matches, to bourbon biscuits were all used. In many cases the fashion designers products were identical to that of products from the original brand owner. For example, the package designs of Kellogg’s Tony the Tiger appeared on a blue background on a tote; Bourbon cookies were transformed into small metallic bags, while Ariel/Daz laundry detergent boxes were turned into clutches. In some cases the starting point for the bags was the shape of the packaging and a tube of McVitie's digestive biscuits was turned into a pencil case-like bag to imitate the shape and packaging of the biscuits; in others cases the logos, colours and symbols on the packaging were employed.



Pop artists are renowned for absorbing and borrowing from popular culture, but is any of this legal? Anya’s designs makes use of the brand names, trademarks and logos of well-known brands in all of her designs, leaving the Goss-IPgirl wondering about trademark and copyright infringement. The Goss-IPgirl is surprised that no one has picked up on this. It may be the case that Anya has a license to do this. But the Goss-IPgirl, does think that this is unlikely, or rather would be extremely pricey.
Trademark, licensing and product placement is big business for companies, one that many guard fiercely. So we wonder what the legal ramifications are of these designs? To mention briefly, there is the issue of trademark infringement and dilution by tarnishment or blurring. There are several criteria which must be reached before one can bring a successful claim for dilution. For example if a trademark's owner can demonstrate that use of the protected Trademark on the designs is going to cause the trademark owners’ mark to lose its distinctiveness as a source indicator, then a dilution claim may kick in.  As with the issue of copyright infringement for the images used and incorporated into the presentation of her designs.


In Milan, the theme of consumption continued also as Jeremy Scott at Moschino opened his first collection as Creative Director of Moschino with references to McDonald's signature logo, the legal implications of which have been addressed here. 
Kyle’s Pop culture for "consumer couture" was celebrated through haute couture gowns made with a fabric inspired by food packaging - from Budweiser to crisps, cereals, jelly bears, baked beans, cheesy bits and other assorted criminal delicacies in Tutti Frutti flavours.  And wedding gowns with prints of nutritional facts labels complete with additives and artificial flavourings, a sort of variation of Schiaparelli's signature newspaper prints. 
Whilst, Chanel over at Paris Fashion Week, built a Fake Supermarket Just to Host his Fashion Show with a ‘set’ that comprised of aisles and tables of every conceivable supermarket good, stamped with interlocking C’s.
Pop Art and fashion are starting to go hand in hand, designers today are generally criticised for stealing from native culture, but rarely criticised for borrowing from popular culture.  This leaves the Goss-IPgirl marinating on a few questions, for which there is no easy answers. Is this type of use free advertising for a company? Is economic or reputational harm caused to a brand through this type of activity? And is borrowing from popular culture legal? From a cultural standpoint, the Goss-IPgirl feels these popular culture references are to be celebrated. Even though there is the need for companies to police and protect their intellectual property perhaps more fitting than suing designers for IP infringement, is the notion that these pop culture references make for good advertising? Which from a brand management perspective may be more important to the profile of these companies than litigating for the unauthorised use of their IP.

Thoughts anyone?

Wednesday, 19 February 2014

Victoria's Secret Sues Perfume Company for Trade Dress & Trademark Infringement.

It’s no secret that Victoria's Secret has been filing a fair share of lawsuits recently. This time, Victoria’s Secret and Bath & Body Works is suing Preferred Fragrance and Fragrance Acquisitions for trade dress and trademark infringement of smell alike perfumes.

The legal dispute claims that Preferred fragrance violated some of the Victoria’s Secret Fantasies collection of fragrances, by selling fragrances that resemble the trade dress of some of Victoria’s perfumes. According to court documents it has been reported that the company copied scents including Vanilla Lace, Coconut Passion, Mango Temptation and Love Spell.

The lawsuit alleges that the defendants "Defendants have intentionally encroached on [Victoria's Secret's] rights in a concerted, ongoing attempt to hijack the substantial brand awareness and goodwill associated with the plaintiff's products and to cause confusion among the buying public,"

Preferred Fragrance "the leading distributor of designer-inspired perfumes," has been subject to trade dress infringement cases in the past. In 2013, the Goss-IPgirl noted here, Prada claimed that Preferred Fragrance copied its perfume "Prada Candy."
        
As the Goss-IPgirl has noted before, generally, it is not illegal to create or distribute smell-alike perfumes. In terms of copyright, the chemical composition of perfumes is not treated as a tangible form of expression to claim copyright protection. Instead, disputes between the perfume brands and copycats are generally resolved by assessing circumstances for trademark infringement, trade dress and or unfair competition.


In this instance, from looking at the court documents, some of the bottles or packaging of the smell-a-likes may well be similar enough to those of Victoria Secret’s to cause consumer confusion  and the courts may take the view that Preferred fragrance’s products are taking unfair advantage off the back of the reputation of Victoria's Secrets. The plaintiffs are currently seeking an injunction, the destruction of alleged competing product and damages.

Tuesday, 18 February 2014

TOM FORD'S JAY Z 'KNOCK OFF’ AT LONDON FASHION WEEK; HIP-HOP CULTURE AND HIGH FASHION FINALLY MEET.


It’s not very often that Hip Hop culture inspires high fashion. During Tom Ford's Autumn Winter 2014 collection last night at London Fashion week. Tom Ford, unveiled a ‘knock off of a knock off’ of Jay Z‘s Tom Ford jersey.  The jersey had the designer’s name, the number 61 (year Ford was born) and the word MOLLY crossed out.

Jay Z declared ‘I don’t pop Molly/I rock Tom Ford,” on the single “Tom Ford” off his latest album, Magna Carter Holly Grail, and rocks the Tom Ford jersey during his performances. It seems that fashion designer, Tom Ford was flattered so much that he has made it part of his 2014 collection.

How did he do it? "I just took the knock off from online and knocked it off. The designer told The Associated Press.

Jay's jersey created by BBP (Black Boy Place), a French brand founded in 2010 sells for $65. Ford in response chuckled and told style.com "My knockoff will sell for $6,500."
So while most of us can’t help but snigger at Ford’s blatant and tongue in cheek homage to Jay-Z during London Fashion Week, the Goss-IPgirl wonders what the designers at BBP will make of this?

Let’s watch this space.

Former Alexander McQueen Intern Sues British Fashion House for Minimum Wage. Is The Culture of The Fashion Internship Changing?

Against the back drop of the glitz and glamour of London Fashion Week that kicked off last Friday. Former intern, Rachel Watson, filed a complaint against the British fashion house founded by the late designer Alexander McQueen, claiming that she worked unpaid for four months without being remunerated.

Rachel Watson, the name given to her by lawyers, is claiming up to £6,415 in "lost wages" as she states the company broke the law by not paying her the minimum wage.

Watson interned at the company in 2009 and 2010 which included drawing embroidery artwork, repairing embellishment pieces and dying large quantities of fabric. According to Watson's lawyer, Wessen Jazrawi, from Hausfeld & Co LLP, said interns are entitled to minimum wage while doing "real work under a contract". Watson, who said she accepted the internship because she saw "no other way into the fashion industry" realised she was being exploited early on. She added: "How could I confront my employer at a time when they held all the cards to my future in the industry?"

Mishcon de Reya has been drafted in by fashion house Alexander McQueen to defend the lost earnings claim. And a spokesperson at Alexander McQueen has commented on the pending proceedings, saying: “We understand this relates to an intern who was with us four years ago. We had no idea until now that she had any concern about the time she spent at Alexander McQueen. We’ve paid close attention to the debate in this area and we now pay all our interns.”

The legal complaint follows controversy that flared up last year, over the fashion houses internship policy, where the fashion house was forced publicly to apologise about an unpaid internship job listing, after University of the Arts London student union president Shelly Asquith brought attention to its advert for a “talented knitwear student” to work five days a week for up to 11 months, without a wage. McQueen said the advert was “issued in error and was not in accordance with [their] HR policy”. This prompted Shelly Asquith, to write a strongly-worded letter to the late designer’s head office accusing the label of “using and abusing” fashion students.

Alexander McQueen is not alone in the fashion world in attracting criticism. The Goss-IPgirl is aware that unpaid internships are touted as being endemic within the fashion industry. It seems that there is a culture of of taking on young unpaid interns and fashion and journalism are renowned for being the worst industries.



Associated with spoiled young women and critiqued for favouring the financially elite, internships have become comme il faut, the de rigueur for students wanting to break into the world of fashion. While the recent Alexander McQueen case shows the campaign against unpaid work is gaining ground, the Goss-IPgirl wonders what this case says for the future culture of the customary unpaid internship in fashion? 

Not only does the unpaid internship raise issues of 'exploitation.' It has also been argued that "failing to pay interns means that those from less affluent families cannot afford to enter the fashion industry, making the sector poorer and less diverse.” 

Various cases over unpaid internships have brought the issue to light over the last few years, including the announcement in October 2013 by Conde Nast – whose titles include Vogue and GQ – that the company would stop taking on interns, after two former interns sued the company claiming that they were paid below minimum wage. This has stirred mixed feelings about the unpaid internship, for some it has been hugely beneficial, for others it has brought with it feelings of exploitation. Whatever the case, the culture of the fashion internship seems to be changing, whether it be through interns taking a stand, or fashion houses refusing to take on interns, and the Goss-IPgirl is interested to see what kind of precedent this case sets for fashion houses and interns in the future.

Thursday, 6 February 2014

BUSINESS OF FASHION – BALENCIAGA VS. NICOLAS GHESQUIERE TRIAL DATE SET IN PARIS


A couple of days ago the trial date was set for Balenciaga's lawsuit against Nicolas Ghesquière for breach of contract. The business of fashion is a complex game and the Goss-IPgirl has been intrigued by this case, which involves an action for breach of confidentiality after the he spoke negatively about the fashion house in a magazine interview.

Nicholas, now the new creative director of LMVH, was at the top of the French fashion house Balenciaga for 15 years, when the brand announced last year that Nicolas Ghesquière was leaving. Revealing his reasons in an interview to System Magazine. Ghesquiére said:

'It was around that time that I heard people saying, ‘Your style is so Balenciaga now, it’s no longer Nicolas Ghesquière, it’s Balenciaga’s style.’ It all became so dehumanised. Everything became an asset for the brand, trying to make it ever more corporate – it was all about branding. I don’t have anything against that; actually, the thing that I’m most proud of is that Balenciaga has become a big financial entity and will continue to exist. But I began to feel as though I was being sucked dry, like they wanted to steal my identity while trying to homogenise things. It just wasn’t fulfilling anymore.'
The Goss-IPgirl notes that although freedom of expression exists in French law, certain limitations are prescribed by law, especially in instances where an employee or former employee tarnishes the image of an enterprise. According to court documents these comments violated the “separation agreement” that Ghesquière signed on October 17, 2012, which said that he 'refrain from declarations that could hurt the image of Balenciaga.' Lines mentioned in the lawsuit include, 'I feel as though I was sucked dry' and 'they wanted to steal my identity.'

The court document says: 'Balenciaga didn’t want its designer to justify his departure by criticizing the house that employed him. In general, the parties, knowing the hypersensitivity of the fashion industry to changes in creative direction, were forbidden from commenting on the break in order to avoid any detrimental effect on their economic interests or their image.'
The court documents also say that, Balenciaga is seeking damages of 7 million euros over the interview in System magazine. And also, according to the filing, Ghesquière was paid 6.6 million euros as compensation for breaking his employment contracts, signed in 2010 and 2012.
The hearing will take place in in the Tribunal de Grande Instance of Paris on July 1st to the hear oral arguments of this civil law case. This could be an interesting one for both freedom of expression and contract law, so let’s watch this space.

Tuesday, 21 January 2014

Copyright in squares? Agreement reached in legal row between artists

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Tobias Rehberger - New York Bar Oppenheimer
 few years ago, German artist, Tobias Rehberger's known for his 1960s and '70s design styles and interesting interpretation of art and space, was commissioned to create a piece for the Berlin National Library.
The result was “Uhrenobjekt” (“Watch Object”) a giant black and white checkered painting that was concealed for almost year because of a copyright complaint brought by one of the UK's most important living artists, the British Op-Art painter Bridget Riley who claimed that the German artist Tobias Rehberger piece was a copy of one of her most famous paintings,movement in squares (1961).

Riley demanded it be removed from display in the library’s reading room, however Rehberger argued that the checkerboard pattern was part of the public domain.
Movement in Squares, 1961 Bridget Riley

Almost a year later, the case has now been resolved and the painting is back on display with a new title: “Uhrenobjekt nach Movement in Squares von Bridget Riley” (“Watch Object after Movement in Squares by Bridget Riley”).

According to an online art publication, “On 15 January 2014, Riley and Rehberger settled the case before the Kammergericht, the highest appeal court in Berlin. According to the settlement, Rehberger’s Clockobject may only be published and shown with the addition to the title ‘after Movement in Squares by Bridget Riley.

The Rehberger work – installed in the Rara-Reading Room in the Staatsbibliothek Unter den Linden (National Library, Berlin) – may only be shown there and can only be illustrated in an art historical context.”

Apparently, Bridget Riley waived all possible copyright claims regarding Rehberger’s Clockobject. In consideration and ‘as a sign of good will’ – as stated in the settlement – Rehberger will pay Riley the amount of €10,000. Riley will donate the money received from Rehberger to Space Studios, London, a charitable organization that she helped set up in 1968 and has been supporting ever since.


The Goss-IPgirl thinks this is an interesting case! Clearly the works are very similar but there are also differences. The checkerboard design is old and widely used, so the question arises: is it really possible for the British artist Riley, to lay a claim to copyright ownership in a black and white grid? According to one online art magazine, this is not the first time Riley has gone to court to protect her work – in the 1960s she famously sued a fashion house for creating a range of clothing that used one of her pieces as the pattern. In that case, she was unsuccessful.