A new lawsuit has been added to the handful of battles over stripes that are already under way between Gucci, Forever 21 and Adidas, among others.
Meanwhile, the time frame and level of expense for getting a visa to work in the U.S. is growing under the Trump administration, a fact that the fashion industry stands to be affected by. And the sophistication of online counterfeiting operations is ever-increasing. A new lawsuit filed by LVMH Moët Hennessy Louis Vuitton sheds light on some of the intricacies of the modern-day hawking of fakes.
Stripes on Stripes on Stripes
Amid the heated litigations between Forever 21 and Gucci, and Forever 21 and Adidas over stripes, a new lawsuit has been added to the mix, and it actually does not involve Forever 21…or the even more notorious stripe-trademark enforcer, Adidas. Nope, this time around, New York-based brand Kule is the one calling copy — for better yet infringement — in connection with its own striped logo.
According to Kule’s complaint, which was recently filed in the U.S. District Court for the Southern District of New York, Clare Vivier is making use of a set of stripes that is just too similar and that is likely to confound consumers. Kule, which is known for its allover striped T-shirts, maintains a federal trademark registration for the use of a two-vertical stripe tab that is affixed to the bottom left corner of its otherwise horizontally striped shirts.
Kule says it has been selling striped shirts containing the vertically striped tab since “at least as early as February 2015.” Enter Clare Vivier, which recently collaborated with New York-based Demylee, to debut a line of sweaters and other knitted items. A few of the tops in that collaboration bear a tiny three-horizontal stripe embroidery at the bottom left hand corner and Kule is calling foul.
Unlike the lawsuits that are already under way between Gucci, Adidas and Forever 21, which do not appear to be terribly clear cut, this case might prove to be a bit less complicated, and not just because the parties likely do not have the stamina or the same level of resources to fight this out as, say, Adidas. (To be fair, not many brands do.)
More importantly, given the difference in size of the parties’ two uses of stripes and the differing number of stripes, this could be a tough win for Kule. Also worth noting: Viver’s tops are not striped, themselves, which is a key element of Kule’s registration.
The bottom line here: Stripes are proving a compelling element to sue over and the number of suits is only growing.
Need a Visa?
The Trump administration is making it more difficult for skilled foreign professionals to work in the U.S., and the fashion industry is by no means exempt. Since early this year, scrutiny of the applications for H-1B visas has soared, with U.S. Citizenship and Immigration Services issuing an increased number of “challenges” — or “requests for evidence” — to individuals’ visa applications.
According to recent studies, between Jan. 1 and Aug. 31, USCIC issued 85,000 challenges to H-1B visa petitions — a 45 percent increase over the same period last year.
While individuals seeking to work in the U.S. may have a few options in terms of visas — depending on his/her background and experience — the H-1B visa is a popular option, particularly for models — or other fashion industry professionals — of distinguished merit and ability. The problem: Only 65,000 H-1B visas are granted each year to non-master’s degree holders, and under the watch of Trump, this is proving more of a hassle than before.
The challenges, which are up by almost half, can prove expensive (as they require employers and their lawyers to provide further evidence to prove their need and eligibility for the visas) and time consuming (they can slow down the issuance of visas by months). And they are being issued “at a greater rate in 2017 than at any time in the Obama administration except for one year, 2009, according to the USCIS data, which has not been previously reported,” per Reuters.
For the fashion industry, this is significant, in large part thanks to the high number of foreign designers, stylists, photographers, models and other professionals who count fashion as their industry of employment. The Council of Fashion Designers of America began lobbying for visa reform earlier this year, including calling for an increase in the number of H-1B visas available each year, but it seems unlikely that Trump — and his “Hire American” order — will go for such demands.
The Increasingly Sophisticated Battle Over Fakes
Canal Street in Manhattan may still be filled with counterfeit bags and jewelry, but the real threat for brands long-ago moved online, and a new lawsuit filed by LVMH sheds light on just how sophisticated counterfeit operations are becoming on the web. Together with its watch brands Hublot and Tag Heuer, LVMH filed suit this week in federal court in Illinois against a long list of defendants, most of which are identified only by Internet domain names.
According to LVMH’s suit, the group of China-based defendants orchestrated a complex web of e-commerce sites purporting to sell authentic Tag Heuer and Hublot watches. The sites, themselves are among “the hundreds and designed to appear to be selling genuine products, while actually selling counterfeit products to unknowing consumers.”
In addition to hosting seemingly legitimate sites, most of which contain Tag Heuer and Hublot’s trademark-protected brand names in their URL addresses, the defendants have utilized unauthorized search engine optimization tactics to ensure that their web sites receive prime placement in search results for the brands’ watches.
Will LVMH see any monetary damages, including profits the defendants received for their allegedly willful trademark counterfeiting, that it is seeking in connection with the suit? It is highly unlikely. According to LVMH’s complaint — and in accordance with common practice amongst high-level counterfeit-sellers — the defendants have likely already moved all of the money they made in connection with the fraudulent web sites out of accounts to which U.S. courts have jurisdiction.
While LVMH’s biggest award will be ownership of the domain names listed in the complaint and any others it identifies as connected to the defendants and bearing its trademarks, that is no real skin off of the backs of the defendants, who hide behind several layers of falsified information about their identities. These individuals have almost certainly created hundreds of new domain names and switched their operations over to those sites, as soon as they learned of LVMH’s lawsuit “so that they can continue operation in spite of plaintiffs’ enforcement efforts.”
That, my friends, is the modern-day counterfeiting operations.
Julie Zerbo is the founder of The Fashion Law.