I am delighted to have been invited to participate in a symposium about fashion and intellectual property law at the University of Pennsylvania Law School March 20. They’ve put together an excellent line-up, and I’m looking forward to discussing the many problems that I see with pending legislation that may grant copyright protection to fashion designs. (You can see some of my thoughts about this here, here, and here.)
If anyone affiliated with the symposium was wondering how the major fashion labels might enforce the new and unprecedented protections that the Innovative Design Protection and Piracy Prevention Act (ID3PA) would grant them, Louis Vuitton gave them their answer on Wednesday. In a condescending cease and desist letter, Michael Pantalony chastised Penn for misappropriating and modifying their trademarks in a promotional poster for the student-run event. Calling it an “egregious action” and a “serious willful infringement” that “knowingly dilutes the LV Trademarks,” Pantalony went on to say that the use would
mislead others into thinking that this type of unlawful activity is somehow ‘legal’ or constitutes ‘fair use’ because the Penn Intellectual property Group is sponsoring a seminar on fashion law and ‘must be experts.’
It doesn’t surprise me at all that an Associate Dean for Communications at the Law School quickly responded to the letter saying they would immediately stop using the posters and invitations: bullying cease and desist letters like this often work that way. When the General Counsel of the University of Pennsylvania, Robert Firestone, saw the letter, he had a very different response, citing several reasons why Pantalony’s claims were absurd.
Trademark protection is meant to protect consumers and companies like Louis Vuitton from imitators who hope to convince potential customers that their products were actually made by the famous brand. Quality control and brand reputation is crucial in the fashion industry and trademark protections are a perfectly logical way to protect customers from fraud and to give companies the tools they need to protect their valuable reputations. Firestone rightly argues that putting a parody of the Louis Vuitton logo on a poster for a student run event about issues surrounding intellectual property protection in the fashion industry would not constitute trademark infringement: obviously, the students are not selling a product of any kind that could be confused with a Louis Vuitton product. Harm done? None. And Pantalony’s additional claim, that people would be mislead into believing that Vuitton is a sponsor of the conference, was also dismissed by Firestone since all the conference sponsors logos are prominently listed on the poster (you can see the full poster here).
Thankfully, in this instance, the students had knowledgeable legal counsel to protect them. But, as you can imagine, that is not always the case. Just imagine the type of bullying that can take place if ID3PA passes: companies with deep pockets will have the ability to scare off lesser-known designers from creating any designs that seem substantially similar to theirs. Introducing design monopolies into the fashion business is a huge mistake that I hope our federal House Representatives will be canny enough to avoid.