Thursday, August 25, 2011

Hells Angels Trademark Infringement

A Hollywood clothing manufacturer, Wildfox Couture, LLC is being sued by Hells Angels Motorcycle Corporation, otherwise known as Hells Angels. Although the name Hells Angels may seem generic, or at least non-corporate, they own the registered trademark and aren’t afraid to defend it. According to a story in the L.A. times on Tuesday, this suit is the latest in a long string of Hells Angels trademark cases. It was filed as Hells Angels Motorcycle Corporation v. Wildfox Couture, LLC and, et al 2011-cv-11-4141 PSG, in the U.S. District Court for Northern District of California.

According to Hells Angels attorney Fritz Clapp:

“We bring these lawsuits from time to time not just to punish but to educate. Somebody thought erroneously that Hells Angels is a generic term."

The T-shirts feature the slogan “My Boyfriend is a Hells Angel” on the front, and Hells Angels official trademarked angel wings on the back.

Tuesday, August 16, 2011

Louboutin's Trademark Suit Against YSL

Can a color be trademarked? The answer is it could be. Trademark registrations have been granted for colors in the past. (See here for the USPTO's standard). But it appears, for shoe designer Christian Louboutin, the answer is…no. Louboutin has been making shoes for the last few years with a trademarked “lacquered red sole.” The ubiquitous soles have turned up on many a red carpet, on the feet of many a celebrity. In fact, as reports, even Jennifer Lopez has a song that mentions Louboutin’s in the lyrics. But recently, fellow shoemaker and competitor Yves Saint Laurent announced a new line of shoes featuring shiny red soles, and began production. Not surprisingly, the shoes sold well. But when Louboutin sued Laurent for trademark infringement and sought an injunction, things got sticky. Can something as simple as a color be trademarked? Well, Louboutin did in fact obtain a trademark registration for the red heels in 2008. But according to last week’s decision by a U.S. District Court Judge Victor Marrero in the Southern District of New York, it can’t. At least not in this case. The decision was based on the idea that any rule that denies an artist the use of a certain color in his or her craft is too restrictive. Specifically, Judge Marrero states, “Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough public recognition in the market to have acquired secondary meaning.”

Although, it seems unlikely that Laurent just happened to start making red soled shoes a couple years after Louboutin had a hit with them. Both parties are scheduled to meet for a case management order this Wednesday. I think Louboutin clearly has attained a high level of secondary meaning for the public to associate the red heals strictly with Louboutin's and not other designer shoes. The outcome of this case will be a significant one for designers and artists of many types, no doubt.

Friday, August 5, 2011

Bratz Trade Secret Litigation $309 million

Bratz Dolls

As an update to the Bratz litigation, the Court has ordered Mattel, Inc. to pay MGA Entertainment $309 million.  In one of our prior posts which can be read here, Mattel initially sued MGA for trade secret and copyright infringement over the popular Bratz dolls, and received a judgment against MGA in 2008.  However, in a reversal, the Court then issued a judgment against Mattel finding them liable for trade secret misappropriation.  Now, the Court has finalized its judgment as follows: $85 million, plus another $85 million in punitive damages for trade secrets misappropriation.   Plus another whopping $137 million was awarded for legal fees, totaling close to $309 million against Mattel.  Ouch!  However, no word yet as to Mattel's appeal.