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UNITED STATES SUPREME COURT SIDES WITH COPYRIGHT OWNER IN STAR ATHLETICA CASE

By Tamar Duvdevani On March 22, 2017, in a 6-2 decision authored by Justice Thomas, the United States Supreme Court ruled that the designs on Varsity Brands’ cheerleading uniforms are eligible for copyright protection.  The crux of this decision relates to the fact that the United States Copyright Act treats the copyrightability of “useful articles” … Continue Reading

IN-STORE ANALYTICS – TRACKING CUSTOMERS IN PHYSICAL RETAIL SPACE

By James Clark (Leeds) Most of us are familiar with the many ways in which customer activity can be tracked in the online space. Customer accounts, cookies, web beacons and tracking pixels are familiar tools in the e-commerce arsenal, and all come with familiar challenges from a privacy and data protection perspective. Increasingly, retailers are … Continue Reading

PRELIMINARY REPORT ON THE E-COMMERCE SECTOR INQUIRY FOCUS ON E-COMMERCE OF CONSUMER GOODS

By Alexandra Kamerling and Marianna Kinsella (London) Background The European Commission’s Digital Single Market Strategy was designed to put Europe at the forefront of the digital economy. To achieve this, the European Commission has recognised the need to reduce barriers to cross-border e-commerce within the EU. On September 15, 2016, the Commission published its Preliminary … Continue Reading

THE LAW IN BLACK AND WHITE – IN THE UK THE DISTRIBUTION AND SALE OF “GREY” GOODS CAN BE A CRIMINAL OFFENCE

By: Richard Taylor and Alasdair Muller (United Kingdom) The English Court of Appeal has confirmed that, in the UK, the sale or distribution of trade mark goods outside an authority granted by the trade mark holder can constitute a criminal offence (R v C and others, applying Trade Marks Act 1994 (the “Act”) s92(1)*).  Possession with … Continue Reading

WHEN IT COMES TO INTELLECTUAL PROPERTY, MILLINERS SHOULD TAKE OFF THEIR FASCINATORS AND PUT ON THEIR THINKING CAPS!

By Josephine Gardiner (Sydney) Australia’s best-known horse racing event, the Melbourne Cup is on today. The race is known to stop the nation… but that’s not all they’re stopping for! Floral frocks, feathers and fascinators – the event is a real life fashion show with its own catwalk known as ‘Fashions on the Field’. The … Continue Reading

A NEW PROVISION FOR TRADEMARK PARODY: IS IT A JOKE?

By Sara Balice and Elena Varese (Milan) A number of fashion players base their business on the very thin line running between tribute and misappropriation.  In this context, it is difficult to understand how quotations of well-known fashion trademarks made with humorous intent should be treated, especially as European Union legislation has not provided any … Continue Reading

THE DIFFICULT BALANCE BETWEEN COMPARATIVE ADVERTISING AND TRADEMARK PROTECTION

By Farid Bouguettaya and Karine Disdier-Mikus (Paris) Have you ever compared products or services when contemplating a purchase? Companies, whenever they can, also strive to mark themselves out from their competitors to gain a competitive advantage and new clients.  In an internal market where competition is highly encouraged by the European Union, comparative advertising has … Continue Reading

DELETION OF THE “GRAPHIC REPRESENTATION” REQUIREMENT FOR TRADEMARKS: OPENING PANDORA’S BOX?

By Ulrike Gruebler (Hamburg) and Gaspard Debiesse (Paris) To stay ahead of the competition, players of the fashion industry have a permanent need to renew their communication strategies, including the use of new technologies and media.  “Sensory marketing”, the art of playing on the various senses of the customers (sound, smell, taste, touch, in addition, … Continue Reading

WHOSE NAME IS IT ANYWAY?

By Ruth Hoy and Emily Leach (London) Designing under your own name is a natural, even intuitive choice for many designers and is an established practice in the fashion industry.  To protect their brand, designers often register their own name as a trade mark.  Associating your own name with your designs has many advantages, but … Continue Reading

THE RIGHT OF A TRADEMARK OWNER TO ACT AGAINST PREPARATORY ACTS OF INFRINGEMENT

By Justyna Wilczynska-Baraniak and Aleksandra Baczykowska (Warsaw) In the fashion industry, tags and labels are a key element of the end product.  Therefore, the change of Regulation 2015/2424 and Directive 2008/95/EC of 16 December 2015 is an important step in combating trademark infringement.  By deploying these preventive measures, a trademark infringement may be interrupted at … Continue Reading

A VERY IMPORTANT DEVELOPMENT FOR BRAND PROTECTION TEAMS IN THE FIGHT AGAINST COUNTERFEIT – GRAB THE MOMENTUM

By Leonie Kroon and Anne Voerman (Amsterdam) When taking action against illegal fake goods, you are no longer limited to goods destined for the EU. The new EU trademark rules introduce the right to take action against all goods at EU borders even when they are in transit (Article 9(4) of Regulation (EU) 2015/2424, and … Continue Reading

TEN TIPS TO CONSIDER WHEN LICENSING A BRAND

By Ann K. Ford (New York) and James Stewart (Washington, DC) Fashion brands are recognized and loved by consumers for their ingenuity and innovative approach to apparel and accessories.  Loyal consumers gravitate to high-quality products produced by a fashion brand and are eager to acquire these exclusive goods.  Once earned, consumers’ enthusiasm, loyalty, and trust … Continue Reading

Trump Has A Legal Problem. And We Don’t Mean The Donald.

By Tamar Duvdevani Last month, in our piece about the pending Supreme Court case Varsity Brands, Inc. v. Star Athletica, LLC, we took a close look at the copyright protection afforded to useful articles (https://www.remarksblog.com/2016/05/cheerleading-uniforms-and-copyright-uniformity-when-is-a-useful-articles-artistic-aspects-amenable-to-copyright-protection/).  The Star Athletica case relates to copyright infringement of cheerleading uniforms, and, in particular, the geometric designs that appear on … Continue Reading

FASHION IN DISTRESS OPPORTUNITIES TO EXTRACT BRAND VALUE

By Robert Russell (Manchester), Rowan Aspinwall and Emily Leach (London) The fashion industry is not impervious to the threats presented by changing consumer behaviour, vulnerable economic conditions and resource scarcity. It is a turbulent time for fashion retailers, who can suddenly find themselves in financial distress somewhere on a spectrum between a simple refinance or … Continue Reading

Cheerleading Uniforms and Copyright Uniformity: When is a useful article’s artistic aspects amenable to copyright protection?

By Tamar Duvdevani Federal courts have long addressed when and if aspects of functional items can be subject to copyright protection. In the United States, “useful articles” such as lighting fixtures, furniture, appliances, and apparel, are generally not afforded copyright protection, and a plaintiff seeking recourse for misappropriation would need to look to trademark and … Continue Reading

RETAILER TRENDS: IN-STORE BIG DATA ANALYTICS

By Carol A.F. Umhoefer (New York) Gone are the days when the CCTV outside the dressing room was only there to dissuade – or help prosecute – shoplifters. Bricks-and-mortar retailers are increasingly moving from the real world to the virtual world as they collect more and more data about current and would-be customers, and engage … Continue Reading

BUSINESS ROUND UP – GLOBAL CONTENT STRATEGIES AND THE ONLINE CUSTOMER EXPERIENCE

Authored by Melinda Upton, Jessie Buchan and Courtney Adamson (Sydney) The emergence of online retail has steadily broken down all physical and geographical limitations on consumption.  It has reinvented the concept of customer experience and provided a kaleidoscopic array of opportunities for consumers to access and experience goods and services at any time of day, … Continue Reading
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