The case, which was filed in Manhattan federal court in 2009, is centered on the notion that Guess — along with handbag licensee Signal Products Inc. and footwear licensee Marc Fisher Footwear — knocked off Gucci product, including goods that featured the brand’s diamond-shaped logoed pattern, square “G” design, a signature script and tri-striped motif. Gucci is looking for damages of $221 million and injunctive relief.
Clad in a black suit, white button-down shirt and black striped tie, Marciano, who testified two weeks earlier, seemed gratified by the rousing closing argument made by his attorney, Daniel Petrocelli of O’Melveny & Myers LLP.
Petrocelli, who is known for his work in the wrongful death civil suit against O.J. Simpson and for representing Enron ceo Jeffrey Skilling, had, until this point, appeared more subdued than Gucci attorney Louis Ederer of Arnold & Porter LLP.
Petrocelli built an argument that called into question Gucci’s motive for suing Guess three years ago after what Gucci alleges was nearly two decades of infringement. The lawyer pointed to e-mails between Guess and its licensees that discussed using Gucci product as inspiration for various designs.
“When you’re sitting here in court and looking at one e-mail after another saying Gucci this and Gucci that…even to me it looks troubling…but people are confused by product, not e-mails,” Petrocelli said, addressing presiding Judge Shira Scheindlin.
“For the most part, the e-mails did not translate to the product,” he said, adding that all brands look to their competitors for inspiration. “I think if we ask for Tom Ford or Frida Giannini’s e-mails, we would see the same thing.”
Petrocelli then addressed the allegedly infringing marks, describing the script and square G designs in question as “weak trademarks” since other brands had similar designs.
Switching gears, Petrocelli said Gucci must have been aware of what it sees as Guess’ infringing designs for years. The attorney asked the court why the plaintiff waited until 2009 to sue Guess and Marc Fisher if the two firms had been knocking off Gucci for years in plain sight.
“I don’t know why they brought this case,” he said, explaining that some goods covered under the lawsuit were no longer in existence and, as a result, it was hard to reconstruct the evolution of certain marks.
“It’s their fault,” the lawyer said of Gucci. “They created the situation. They have no right to come into court.”
Marc Fisher’s lawyer, Darren Saunders of Manatt, Phelps & Phillips LLP, gave a brief synopsis of the case, parroting his co-defendant’s argument.
Saunders said Gucci’s attorney kept referring back to only a handful of the 155 allegedly infringing shoes. He said that sample wasn’t large enough to reach a broader conclusion on the case.
But Ederer wasn’t having any of it.
“This was a perfect storm of willful infringement,” he said, referring to Guess and its licensees. “It was in fact a calculated scheme. When I say calculated…I am talking about a mind-set.”
Ederer explained that the defendants’ “entire business model” was to come “as close to Gucci as you can” without being “noticed.” In the preceding weeks, Ederer presented correspondence that implied that Guess worked with licensees and manufacturers to copy Gucci patterns and designs.
“It’s all an infringement,” he said. “It’s all willful. It’s knowing and deliberate every step of the way.”
But the judge seemed somewhat influenced by the defense’s argument that if Gucci had a problem with Guess’ designs, it should have acted sooner.
She noted that Guess’ advertising showing allegedly infringing goods was widespread, and in many cases in the same magazines as Gucci’s. She asked how Gucci could miss the “infringement” for so long.
“Gucci’s focus was and is on counterfeiting,” Ederer replied, but the judge didn’t seem entirely satisfied.
After going through the allegedly infringing marks and discounting the testimonies heard over the last few weeks, the lawyer showed a slide with side-to-side comparisons of Gucci products and the defendants’ products.
“It’s time for the court to put its foot down,” Ederer said.
Although there is no deadline for the judge to reach her verdict, sources close to the case said a judgment should be delivered in the coming months.
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