Liability in Louboutins:  Fashion Law as an Emerging Discipline

Jashan Jayesh Merchant, Student, Maharashtra National Law University, Mumbai

Introduction

The emergence of fashion law as a discipline to reckon with, has, in the recent times, taken the legal world by storm.  Also known as the law of luxury good and first systematized in 2004, with the publication of “Droit Du Luxe” by Annabelle Gauberti[i], which is widely regarded as the cornerstone of fashion law. A number of recent cases of intellectual property rights issues,[ii] copyright issues, fashion controversies, employment, consumer protection, counterfeit issues, brand imaging and discrimination or racism in the fashion industry[iii] which have come into the limelight have illustrated the need for this field of law to be given a specialized and official status. This essay deals with some of the major sub-branches of fashion law, with Part I talking about cases relating to copyright and other civil law issues, Part II dealing with the rights of employees and workers in the fashion industry, and a conclusion, elaborating on the need for the codification of this branch of law and its significance in society.

Part I

Since the differentiation between different fashion brands and subsequently their worth or their standing as a status symbol in society is based on their symbolic designs, a number of copyright cases have originated wherein one brand has sued the other for lifting their design and marketing them as some other brands. This is a prevalent issue in the cases of major national and international fashion houses. In the case of Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc,[iv] Louis Vuitton sued Akanoc, alleging that some of its customers directly infringed on their company’s copyrights and it failed to curtail the same, despite receiving 18 notices from the plaintiff. Hence they were accused of knowing their conduct to be mala fide, and were therefore guilty. The Court of Appeals for the Ninth Circuit held the defendant liable and statutory damages were awarded. This went on to become a landmark case in federal trademark and copyright law.[v] Louis Vuitton’s trademark tote bags come under the most copied designs in the world, so dealing with each and every case of lifting of designs may be unrealistic to deal with. However, cases relating to lifting of designs and reproduction of copies are not limited to small time companies lifting from larger companies. There are rivalries relating to design between major international fashion houses as well. In Christian Louboutin LLC (“Christian Louboutin”) v.Yves Saint Laurent America, Inc,[vi] the plaintiff alleged that YSL and its affiliated companies violated Louboutin’s red sole trademark by selling women’s red monochrome shoes virtually indistinguishable from the same and sought relief stating that Christian Louboutin was the first to introduce the concept of red-soled shoes in 1992 and has been registered by trademark since 2008.  On the grounds of contravening the goodwill of Louboutin’s brand image and causing deception to consumers due to the identical nature of the products under the New York Common Law. YSL, however fought back, stating that they had in fact pioneered the concept of red soled shoes before Louboutin registered it.  The Court finally dismissed Louboutin’s injunction as YSL’s shoe was completely red and so did not qualify for a sole mark. [vii]This shows the Court’s specific outlook towards intellectual property protection. Another high fashion company to face the woes of copyright infringement was Burberry, who filed a suit against Designers Imports [viii]for selling counterfeited Burberry goods, namely the distinctive check print and knight in arms symbol, and Euro Moda for selling copied accessories and apparel. [ix]Courts awarded Burberry $1.5 million in damages in the Designers Action and $4 million in the Euro Moda Action, each of which was significantly less than the statutory maximum, which was what Burberry sought in each case. [x]For willful infringement, the Lanham Act[xi] provides for increased damages where the court determines that the defendant infringed on the plaintiff’s trademark willfully, i.e. the defendant had knowledge of its conduct. This case shed light on the fact that various loopholes in the law could serve to escape maximum payment of damages when an action was sought.  However, these damages were sought under a codified Act, which made the procedure more transparent and comprehensive.

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