From Vogue To The Court Room – High IP Stakes In High Fashion

Author:Ms Bethany Brown
Profession:Haseltine Lake Kempner LLP

Fashion is a cut throat business; as Heidi Klum says "One day you're in and the next day you're out". The stakes are raised when matters of fashion are taken away from the catwalk and brought into the world of IP. With huge brands and huge amounts of money up for consideration, the world of fashion has seen its fair share of IP disputes.

In 2017 Tommy Hilfiger (TH) filed an application for their logo (the Tommy Hilfiger Flag) to be registered for copyright protection in the US. The application failed as the work was not deemed to have fulfilled the requirements for the work to be sufficiently original. Several factors played a role in the court's decision, they highlighted that it is prohibited to copyright certain shapes (i.e. common shapes) and that they did not consider the use of shapes in this logo to be sufficient for copyright protection. TH also argued that their logo had been made from a combination of three flags from the nautical flag alphabet, however the court found that the use of these flag designs with, what they considered to be, such trivial changes did not give TH the right level of creative authorship. This case highlights that, while the test for originally is not considered to be setting a high bar, the requirement is very much there and will be considered by the court.

Not everyone wants to look like Kim Kardashian but for those that do fashion retailer Missguided thought that they had found a perfect marketing technique. From tagging Kim in their photos, to making replicas of her outfits to sell online, the company were using Kim's name to sell their clothes and in doing so, were also implying that Kim was working with the company. The flaw in their plan was that Kim was not happy about this situation and so brought a lawsuit. The court decided in her favour, awarding her $2.7 million in damages and permanently banning Missguided from using Kim's trademarks to sell...

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