Wednesday, March 7th, 2012
17

Louis Vuitton Struggles to Protect Its Sacred Trademark

Today Louis Vuitton had its Paris show (it was train-themed! They built a giant train! All the models had (non-union) porters!). Meanwhile, Louis Vuitton's "director of civil enforcement for North America" is real mad at the University of Pennsylvania's Penn Intellectual Property Group. They're holding a symposium later this month on fashion law and copyright, which is very fascinating! And their poster drew the ire of Vuitton, incorporating and parodying as it does their trademarked material. Vuitton's claim that the poster's "dilution" of their trademark is bizarre, and what's amazing about these discussions now is how willfully everyone wants to misread copyright law. And now I am violating the copyright of the person who made this parody by reproducing it digitally here. The circle of life!

17 Comments / Post A Comment

La Cieca (#1,110)

I don't think it's willful misreading so much as sheer bullying, with the Vuitton IP attorneys simply ignoring the law and betting that intimidation will make the less expensively-lawyered back down. Of course, when a manufacturer's marketing strategy consists solely of plastering its logo on wildly overpriced but mediocre goods, they have little choice but to threaten to crack the heads of anyone who might possibly "dilute" the value of that logo and its appeal to the nouveau riche idiots who are its target audience.

mark etc@twitter (#224,285)

1) louis vuitton is being insane.

2) some points of clarification: copyright and trademark are actually two pretty distinct bodies of law, with different purposes and different defenses. copyright deals with art–and encouraging artistic production–and the kind of "fair use" this article's referring to is a copyright defense and isn't really relevant to louis vuitton's use of trademark.
trademark is about branding, and this complaint is about trademark, not copyright. trademark has its roots in consumer protection (by ensuring that a mark indicates a consistent source), but it has, over time, been expanded to protect branding and company goodwill more broadly. what louis vuitton is complaining about here is that things like this dilute their brand image by saying "louis vuitton" and not being louis vuitton. this is pretty silly in this case–and the relatively recent addition of "dilution" as a type of trademark claim in the united states is controversial among scholars–but, for the time being, it is a valid claim in the united states.
"fair use" isn't really a defense to this, as "fair use" in trademark means something pretty different. "fair use" in trandemark means that you're using the mark to describe the product in a way that doesn't purport to speak for the company that makes the product (e.g. saying "i bought a louis vuitton bag" is fair use of the "louis vuitton" trademark).
anyway, not sure if that helps or if it's just confusing. the distinction b/w copyright and trademark isn't generally that confusing, but louis vuitton's use of trademark as central to their artistic style has done a lot to blur the lines…

I'm backing Penn in this fight, but to be fair, I don't think anyone's misreading copyright law. They're talking about trademark law, a separate thing. It's important because it's incredibly difficult to obtain copyright protection for fashion. Forever 21 and the like's business model is pretty much built on the absence of that protection. All designers really have to protect their stuff is a brand identity and their trademark.

I also don't think LV's actions also aren't entirely bizarre (or at least not any more bizarre than IP law generally is): if a trademark owner is aware that someone else is using their mark without a license and they do nothing, they weaken the strength of the protection for that mark against future infringers. What LV could have done, though, is send a nicer letter (especially knowing that it would soon be circulating to most IP academics and the broader Internet) and explain, "ha ha, we get it, but we have to act like a good trademark owner, assert our rights, and grant, you, Penn a limited license to use the mark."

Very fascinating, right?

dntsqzthchrmn (#2,893)

@Joey Seiler@facebook Yes, it's really about appearances — which is why I wonder how this kind of fight will change as more digital natives with IP practices make partner.

robertgspence (#2,004)

As I understand it, to be considered parody under the law, at least for fair use-type purposes, the repurposing usually has to comment on the mark or company it represents. So Fat Ronald McDonald (e.g. http://archive.klik.tv/articles/view/4aa875f2-0b40-40e9-9e08-2a14ac110348) is likely a parody, but, say, using Ronald McDonald on a hamburger convention poster is much less likely to be considered a fair use.

It's all about the 'likelihood of confusion.' If LV customers (as little as 10% in some cases) think Louis Vuitton is sponsoring or affiliated with the conference, you're diluting the mark. Then parody/fair use is your only defense.

I personally subscribe to the theory that the Penn group did this intentionally to draw LV's ire and gin up publicity when it inevitably hit the news cycle.

dntsqzthchrmn (#2,893)

> Penn group did this intentionally

Agree. But that's the problem — trademark fights essentially follow broken window theory. Any unauthorized use of the mark has to bring a serious response or you've given infringers implicit permission.

atipofthehat (#797)

I'm going to read the parody version of this when it goes up on the Holepunch.

stuffisthings (#1,352)

Definitely putting this up on Pinterest.

BadUncle (#153)

Alright, it might be heretical to admit, but I fucking hate the Vuitton logo / logo pattern. It's noisy, cluttered and ugly. Whatever happened to understated?

SidAndFinancy (#4,328)

@BadUncle: Yes, and so is this Xerox of it. It frankly makes me ill, so I think I'll get some Aspirin and a Kleenex. But that's only a Band-Aid solution. Maybe I need something stronger, like Heroin.

keisertroll (#1,117)

@SidAndFinancy Great, now we're getting into the hard stuff, like genericized trademarks.

SidAndFinancy (#4,328)

@keisertroll Yeah, that's how I got this nasty Coke habit.

saythatscool (#101)

Do you guys think that Modern Family guy is going to sue Tyler for looking just like him?

jfruh (#713)

@saythatscool THANK YOU FOR SAYING WHAT WE'VE ALL BEEN THINKING

Please include Awl logo on the site so we can dilute it.

aliceinthecities (#1,911)

The letter Penn's counsel sent to LV is a masterpiece of lawyerly sass: http://www.law.upenn.edu/fac/pwagner/DropBox/penn_ogc_letter.pdf

keisertroll (#1,117)

You know who doesn't care if his logo is reproduced without his permission? Hitler.

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