Louis Vuitton will finally have to give up its long-running lawsuit against spoof tote brand My Other Bag.
In the first day of its new term, the U.S. Supreme Court refused to take up Louis Vuitton’s July appeal of last year’s Second Circuit ruling rejecting the luxury brand’s claims of trademark infringement against My Other Bag, which sells canvas totes emblazoned with drawings of some of Vuitton’s most popular monogram handbags.
The court did not give an explanation for the denial, as is customary when deciding on the hundreds of petitions for writ of certiorari it receives before every term.
A Louis Vuitton spokesman declined to comment on the decision
My Other Bag attorney David Korzenik, said the decision did not come as a surprise.
“The outcome of this case was obvious, as all judges below have observed,” Korzenik said. “Louis Vuitton has simply used it’s economic power to step on the free speech rights of those who don’t have their deep pockets.”
Louis Vuitton’s petition, which came after the house lost its trademark infringement claims at the district and appellate levels, was always a long shot. The Supreme Court only takes up an estimated 1 percent of cases each term, and one of its guiding principles in selecting a case is whether it presents an issue of “national importance.”
With underlying rulings that characterized the My Other Bag totes as “an obvious attempt at humor” and competing petitions involving issues like gerrymandering, online privacy and the ever-popular First Amendment right to free speech, Louis Vuitton’s claims didn’t make the cut.
The litigation goes back to 2015, when Louis Vuitton first took issue with a canvas tote being sold by My Other Bag with a printed image of the luxury brand’s popular monogram Speedy tote, the style and monogramming of which is registered under several trademarks.
Under U.S. trademark law, reproduction of registered marks is allowed in the form of a parody, generally so long as the product doesn’t create “consumer confusion” as to its origin, but there is no hard and fast legal definition of what counts as parody and what crosses the line of infringement. A big issue for courts is often to what level the parody constitutes freedom of speech.
In the eyes of Louis Vuitton, My Other Bag’s totes are not being used “for expressive purposes,” but instead “to free-ride” on its famous marks.
Louis Vuitton told the Supreme Court that the Second Circuit’s finding My Other’s Bag’s tote as mere parody created too broad of a standard for infringement that “seriously undermines [the Trademark Dilution Revision Act’s] overriding objective of safeguarding famous marks against dilution.”
While the brand tried to argue that this called for the Supreme Court’s intervention, Jed Ferdinand, a longtime intellectual property lawyer, said at the time that the case was unlikely to get picked up. But he added that Vuitton likely had other motives for playing the odds.
“If you’re Louis Vuitton you want to send a message that you’re policing the market and there’s a certain deterrent value for aggressive enforcement,” Ferdinand said. “Maybe it’ll stop somebody else.”
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