By  on February 17, 2017

This week saw the law making its mark both in court and on the web. While Alexa Chung and a handful of runway models band together to take luxury consignment site The RealReal to court for allegedly using their images to promote its services, Alexander Wang took on German designer Philipp Plein on Instagram.Beyond those, the closely watched Louis Vuitton vs. My Other Bag case came to a close, offering trademark holders and parodists alike some significant lessons to walk away with.The RealReal Named in Right of Publicity Suit Alexa Chung and a handful of models represented by New York-based Next Model Management have teamed up to sue The RealReal. The models — who include Anastasia Kolganova, Astrid Baarsma, Leona "Binx" Walton, Briley Jones, Crista Cober, Daniela Witt, Georgia Hilmer, Grace Hartzel, Hedvig Palm, Julie Flemming and Lineisy Montero, among others — allege that the San Francisco-based luxury consignment site has used their images and likenesses without their authorization in connection with the marketing of its site and resale services.The suit centers on the models’ claim that The RealReal has violated New York State Right of Publicity Law, which prohibits the use of a person’s name and image, among other things, to solicit sales without their written consent. And it marks something of a growing trend in fashion and in Hollywood over the past several years.It might be recalled that Rihanna filed a lawsuit in the U.K. against Topshop in 2013 on similar grounds after the fast-fashion retailer began selling a T-shirt bearing her image without her permission. The singer prevailed in that case, with the court holding that Topshop's sale of the Rihanna T-shirt without the singer's authorization constituted "passing off.”In 2011, Kim Kardashian sued Old Navy for casting an actress who looked very similar to her in a commercial, citing California’s right of publicity statute. That suit was settled out of court. Three years later, actress Lindsay Lohan sued the makers of video game "Grand Theft Auto" on right of publicity grounds for allegedly utilizing a character in the fifth iteration of its game and its marketing that bore a striking resemblance to her. The New York Supreme Court ruled against Lohan in her case, stating that the video game maker did not use her "name, portrait or picture" in the game and as a result, did not violate her right of publicity. The case is now pending before New York State’s Court of Appeals.That same year, actress Katherine Heigl slapped Duane Reade with a $6 million-plus lawsuit, alleging that the New York City-based drugstore giant misappropriated her likeness by sharing a paparazzi photo of Heigl leaving one of its stores on its social media accounts along with the caption: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping at #NYC’s favorite drugstore.” The parties ultimately settled the suit.Given the common practice of designers and other fashion brands posting images of celebrities and models in their designs for the purpose of garnering press and boosting sales – likely without explicit permission from these individuals – it will be interesting to see if more people, including models, opt to utilize this cause of action in the near future.Wang vs. Plein: Battle of the Sport-Inspired ShowsOn the heels of Philipp Plein’s fall show during New York Fashion Week, Alexander Wang took to his Instagram account to call out the German designer, claiming Plein’s Sport collection show in Milan in January copied one of Wang's earlier ones. According to the side-by-side video that Wang posted on his Instagram, he is taking issue with Plein’s set and styling, which bear quite a bit of resemblance to the American designer’s H&M collaboration collection and show from October 2014.As for why Wang is airing his grievances on social media and not in a legal complaint: Chances are, he lacks easily established legal claims. Staging a runway show amidst an obstacle course and race track is arguably more an idea, which is not afforded protection under U.S. copyright law, than a protectable expression. And certainly not protectable is the somewhat vague notion of styling of athletic gear, such as boxing gloves and harnesses, into a fashion collection, which both brands shared.With this in mind and regardless of whether Plein actually looked to Wang x H&M for inspiration, Wang is left with the recourse that so many less established designers rely on: Waging a war on social media. While social shaming has proven largely ineffective against fast-fashion copyists, higher-end fashion brands tend to respond when publicly called out for copying. Chanel, for instance, has proven very receptive to publicly lodged copying claims.Not surprisingly, Wang’s bold Instagram message certainly got its point across. Just a day after the designer posted his copying claims, Plein released a statement by way of Jennifer Leppla, the brand’s marketing and communications director, who denied any wrongdoing.Louis Vuitton vs. My Other Bag Comes to a CloseFollowing a two-year-plus battle, the lawsuit that Louis Vuitton filed against canvas tote bag maker My Other Bag (“MOB”) has come to a close. Known for its inexpensive designer bag-on-a-bag styles, which make use of cartoon depictions of famed Balenciaga, Proenza Schouler, Yves Saint Laurent, Céline and Louis Vuitton bags, among others, MOB has been cleared of copyright and trademark claims lodged by the Paris-based design house. In December, the Second Circuit Court of Appeals affirmed the Southern District Court of New York’s ruling that MOB’s canvas tote bags are, in fact, legal “parodies” of Louis Vuitton’s own bags and the associated intellectual property.Not satisfied that MOB was not merely trading on its well-known and celebrated IP without a clear parodic intent, Vuitton asked the Second Circuit to rehear the case in front of its full panel of judges and on Monday, the court denied the request. As a result, the Second Circuit’s previous ruling stands.One of the key takeaways from this case is the potential expansion of the parody doctrine in the Second Circuit. In its December 2016 ruling, the Second Circuit provided some guidance about when the parody defense likely applies, contrasting the Vuitton case with an earlier parody case involving Starbucks (Starbucks Corp. vs. Wolfe’s Borough Coffee). The court held that in the case at hand that Louis Vuitton’s luxury image was the “very point of MOB’s plebeian product,” whereas in the Starbucks case, the defendants used the name “Charbucks” to identify a coffee blend that would directly compete with Starbucks in terms of market positioning and quality of the goods. As such, the use of “Charbucks” was held to amount to trademark dilution, whereas MOB’s use was deemed to be parodic.Moreover, the Second Circuit’s decision reiterates that parody can be a successful defense to a trademark dilution claim. It affirms that a parody may be based on general social commentary and not only target a specific brand. The court further held that a parody need not necessarily be negative, all of which could provide quite a bit of leeway for companies looking to profit from the parody defense. Julie Zerbo is the founder of The Fashion Law.

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