The legal battle between Ivanka Trump and Aquazzura has not only not been settled, it is on the court’s calendar for trial and the first daughter herself is expected to be deposed any day now in connection with the trademark and design patent infringement case. Meanwhile, the Federal Trade Commission has held that Instagram might not actually be helping its users to clearly disclose their paid-for partnerships. Finally, there are some legal implications to the recent resurgence of logo-mania.
A Trump-ed Up Trial
Following a ruling early this summer that Ivanka Trump must testify under oath – by way of a deposition – in the lawsuit that Aquazzura filed against her fashion brand, this legal battle is alive, well, and has a trial date. As of this past week, Judge Katherine Forrest of the Southern District of New York put a March 2018 date on the court’s calendar for the start of the Aquazzura v. Trump case. That is if, of course, the case makes it that far.
More often than not, lawsuits — intellectual property in nature or otherwise — tend to settle ahead of trial. Yet it has been over a year since Aquazzura founder Edgardo Osorio’s counsel filed suit against Trump citing trade dress and design patent infringement, among other claims, stemming in part from her $150 lookalike red fringed sandal. The Trump brand shoe bears a marked resemblance to Aquazzura’s $700-plus Wild Thing sandal, which has proven a hit with street style stars and Hollywood starlets alike.
It seems that if a settlement is in the pipeline it very well might happen just ahead of Trump’s deposition deadline; per Forrest, the deposition must take place before the end of October. Oftentimes, companies will agree to settle a suit to enable high-ranking individuals to avoid testifying — or for any number of reasons, one of them being the amount of time required to prep the individual to be deposed. Another reason? To avoid subjecting the individual from the oft-unpleasant deposition experience.
Trump’s legal team argued in June that the first daughter should be excused from testifying because of her “extraordinary circumstances” as a “high-ranking government employee.” The judge – while assuring Trump’s counsel that she understands that Trump does, in fact,“have a second job right now” – still demanded that she testify. Forrest did, however, order that the deposition be limited to no longer than two hours because of Trump’s “competing professional obligations.”
The FTC Has Some New Rules
On the heels of sending a new batch of letters to celebrities and fashion industry figures earlier this month, the Federal Trade Commission clarified some of its rules in a recent influencer-focused question-and-answer session on Twitter.
One of the most striking takeaways from the Q&A led by the government agency? Its statement that Instagram and YouTube’s built-in “Paid for Partnership” disclosure features may not actually amount to valid disclosures. According to the FTC’s tweets on the matter: “Don’t assume that disclosures built into platforms are sufficient. It depends on whether the tool clearly and conspicuously discloses the connection. FTC staff doesn’t think that the built-in YouTube and FB tools suffice. The same applies to the built-in Instagram tool.”
Chances are, the FTC believes that the in-app disclosures fail to meet its requirement that disclosures be “clear and conspicuous” because their text is simply not as prominent as other text on the page. On Instagram, for instance, the “Paid for Partnership” language text is smaller in size than the size of text used to indicate a user’s name and also, tends to be cut off if the line of text regarding the partnership is too long.
The FTC has not yet initiated formal action against Instagram or the influencers on its platform, but it may be ramping up to do so, as indicated by its increased attention to social media influencers as of late.
Trending for Spring 2018: Trademarks
Amid the spring 2018 runway shows, there has been a lot of talk about the resurgence of “logo-mania,” as every brand from Burberry in London to Gucci and Fendi in Milan, and even Lanvin in Paris, have taken to splashing their names and logos on garments and accessories.
Far from merely an aesthetic or design element, this move is an interesting once, as it — at least in theory — will make it more difficult for fast-fashion retailers to accurately and legally churn out copies, since making use of another brand’s name and/or logo gives rise to trademark infringement claims.
That does not, of course, mean that the likes of Zara and Forever 21 — the latter of which is currently facing off against two giants, Adidas and Gucci, for trademark infringement — will not get inventive and begin creating just-legal-enough garments that bear a print that mirrors Gucci’s double “G” covered garments, or jackets that rely on a not-so-peculiar plaid print in an attempt to bank on the appeal of Burberry’s return to its famous (and legally protected) plaid.
It will be certainly interesting to see if – and how – fast-fashion retailers will manage to legally lure consumers in, in light of the resurgence of the logo, which certainly stands to make their job quite a bit more difficult.
Julie Zerbo is the founder of The Fashion Law.