Taylor Swift Settles "Lucky 13" Lawsuit, Avoiding Trial

Taylor Swift

The singer strikes a deal to end the trademark dispute right as she was scheduled to submit to a deposition reports The Hollywood Reporter.

Taylor Swift has put to end to an uncomfortable legal difficulty with a confidential settlement executed with Blue Sphere, an Orange County-based clothing company that accused the singer of infringing its "Lucky 13" trademarks.

The lawsuit against Swift was filed in May 2014 as Delortae Agency reported here Taylor Swift Sued by Lucky 13 Apparel Company for Trademark Infringement, after she allegedly began marketing clothing bearing the "Lucky 13" phrase and made a partnership with a greeting card company conducting a "Lucky 13" sweepstakes.

In recent months, the litigation had evolved from a ho-hum trademark case into one that delved into many aspects of Swift's business acumen and had the prospect of becoming embarrassing ahead of a trial that was scheduled for January.

In particular, Blue Sphere and Swift went several rounds over whether she'd have to submit to a deposition. Swift claimed "harassment" as well as a busy tour schedule with the plaintiff investigating endorsement deals and serving subpoenas on Elizabeth Arden, Coca-Cola Company, Proctor & Gamble, Toyota Motor Sales and Papa John's, among others.

Her agents at William Morris Endeavor handed over its documents pertaining to Swift while attorneys for Blue Sphere continued to hunt for such items like all photographs and videos of Swift in which her buttocks or breasts were at least partially visible. The effort was made in part to figure out how products were being named, what other products might have been contemplated, and whether there were searches of trademark records in conjunction with all this. Additionally, Blue Sphere looked to investigate Swift's control over her brand and understanding of marketing channels.

In August, a judge cleared the way for a deposition, though the two sides continued to fight over timing.

Those looking for a better understanding of why Swift filed registrations on such marks as "this sick beat" or how hands-on she has been in her business won't learn anything more in the case. On Friday, the parties told a judge of the settlement agreement resolving all claims. 

Swift was represented by J. Douglas Baldridge at Venable while Blue Sphere was handled by Gary Rinkerman at Drinker Biddle & Reath.

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Steve Madden Settles TCPA Violations for $10 Million

Steve Madden footwear pic Nordstrom

STEVE MADDEN in trouble again, this time for violating the consumer. The publicly traded shoe designer has been no stranger to lawsuits in the past but this one is slightly different. The Telephone Consumer Protection Act (“TCPA”) provides for, among other things, statutory damages to individuals who receive unsolicited text messages to personal mobile phones – unless the messages are sent for emergency purposes or the recipient has given his or her express consent to receive such messages.  Companies that hire third parties to advertise on their behalf can also be held “vicariously liable” for the acts of those third party advertisers and predicted that many class action suits will arise in the future. 

Last week proved those predictions to be true and provided a real life example of the TCPA’s authority to hold hiring companies liable for the acts of their third party advertisers. posted kleinmoynihan.com

Steve Madden Shoe Company Class Action Lawsuit

Steve Madden, Ltd. (“Steve Madden”), an international shoe retailer, was accused of sending more than 200,000 text messages to consumers through one of its third party advertisers.  The company presented two defenses to these accusations:

1. That consumers had implicitly consented to receive text message solicitations by providing their cell phone numbers while visiting Steve Madden stores; and alternatively
2. That a third party advertiser sent the text messages and should be responsible, not Steve Madden.

Those who have been following this blog should know that neither of these defenses is viable.  First, under the TCPA, consumers must provide express and unambiguous consent to receive unsolicited text messages for commercial purposes.  A customer that verbally provides his or her mobile phone number at a point-of-sale retail outlet without being expressly told how that number will be used, has not provided “consent” under TCPA requirements.  Beginning October 16, 2013, a heightened standard will be imposed under the TCPA, requiring prior express written consent to send autodialed and/or pre-recorded text messages to cell phones for marketing purposes.  Limited exceptions will apply to this requirement, such as calls/texts from the consumer’s cellular carrier, debt collectors, informational notices and healthcare-related calls.  If a dispute concerning consent arises, the advertiser bears the burden of proof to demonstrate that a clear and conspicuous disclosure was provided and that the consumer unambiguously consented to receive text messages and/or telemarketing calls to the number provided.

Second, in a Declaratory Ruling issued on May 9, 2013 the FCC ruled that a seller who does not “initiate” calls/text messages as contemplated under the TCPA can nevertheless be held liable where there is an “agency relationship” with its third party advertisers.  Some of the factors that the FCC cited in determining whether an agency relationship exists include the following, as restated here:

• Evidence that the seller allows the outside sales entity access to information and systems that normally would be within the seller’s exclusive control, including access to detailed information regarding the nature of seller’s customer information, e.g. cell phone numbers provided at the seller’s store;
• Evidence that the outside sales entity has the ability to enter consumer information into the seller’s sales or customer systems, as well as the authority to use the seller’s trade name, trademark and service mark;
• Evidence that the seller approved, wrote or reviewed the outside entity’s telemarketing scripts; and
• Evidence that seller knew (or reasonably should have known) that the third party advertiser was violating the TCPA on the seller’s behalf and the seller failed to take effective steps within its power to force the advertiser to cease that conduct.
• In the case of Steve Madden, we would assume that a majority of these factors were satisfied.

TCPA Penalties

The TCPA provides for either actual damages or statutory damages ranging from $500 to $1,500 per unsolicited message.  Considering that text message marketing campaigns often yield thousands, and in this case hundreds of thousands, of text messages, potential damages under the TCPA may escalate very quickly, as evidenced by the fact that Steve Madden was willing to settle the case against it for $10 million dollars.

Should it opt to engage in this method of marketing in the future, as part of the settlement agreement, Steve Madden also agreed to obtain consumers’ express consent, in writing, to receiving marketing text messages.  The company must retain that proof of compliance for four years and require its third party advertisers to abide by these terms.

For a brief description of how to handle a situation in which a TCPA action is brought against you, please see our post entitled, How to Defend a TCPA Lawsuit.

The settlement of Steve Madden’s case should be of interest to text message marketers and those generally interested in the Internet and mobile marketing spaces. If you are interested in learning more about this topic or pursuing a text message-based advertising campaign, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

KMT certainly put forwarded the case clearly (thank you) but what does this action mean for advertisers?


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Chanel And "parody" Streetwear Brand in Trademark Suit

Parody Street Wear

CHANEL is unimpressed with a T-shirt depicting its famous double C logo as the Ghostbusters sign, so much so that it is taking legal action against the garment's makers. Jeanine Heller, the founder of "parody" streetwear brand






What About Yves - made famous for its "Aint Laurent Without Yves" merchandise - has been served with a trademark infringement suit by Chanel.

Filed last week in New York, the suit asserts that Heller is "displaying, offering for sale, and selling on her website, and selling to third-party retailers, a T-shirt and a sweatshirt bearing Chanel's CC monogram mark with an image of an animated ghost commonly associated with the motion picture Ghostbusters," The Fashion Law reports.

The company says that, far from "transforming the mark", which is a standard defence for parody products, Heller is using the "clearly recognisable CC monogram mark [on] her own clothing precisely because of the iconic status of the mark, with knowledge of its association with Chanel, in order to call to mind Chanel".

Heller's brand made fashion headlines last year when it was found to be at the root of a disagreement between Saint Laurent and Parisian boutique Colette. Heller's "Aint Laurent" merchandise - which passed comment on creative director Hedi Slimane's decision to drop the word Yves from the brand's logo - was stocked by Colette, leading Slimane to pull his Saint Laurent collection in its entirety from the store.

The website, which is still offering the "Official Chanel X Ghostbusters" designs for sale, also stocks products which parody or infringe (depending on your point of view) the famous logos of brands including Hermès, Louis Vuitton and Dior. Whether any of these brands will take legal action remains to be seen, but Chanel is seeking damages that amount to up to "three times the amount of actual damages sustained" reported Vogue UK



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Stella McCartney sues Steve Madden Over Handbag Rip Off

Stella McCartney SS15

STEVE MADDEN finds himself in trouble again, this time being taken to court by UK designer Stella McCartney.

It has always been a difficult line to cross when does a high street copy of a design cross the threshold to trademark infringement.

LEFT: STELLA MCCARTNEY FALABELLA BAG; RIGHT: STEVE MADDEN BTOTALLY BAG

All the major brands have at one time or another challenged this. High street retailers like H&M and Zara and  have become giants in the apparel industry by mass producing runway-derivative styles at wallet-friendly prices. Also vice versa: Saint Laurent was recently accused of knocking off a Forever 21 dress and selling it for 150 times the original price.

LEFT: STELLA MCCARTNEY FALABELLA BAG; RIGHT: STEVE MADDEN BTOTALLY BAG

Stella McCartney has an idea on the matter. The UK-based designer has filed a lawsuit against Steve Madden for copying her popular Falabella bag just a little too closely with his BTotally bag. According to WWD, the 22-page legal document cites the charges against Madden as "trade dress infringement, unfair competition, deceptive trade practices, trade dress dilution, and design patent infringement" involving the "marketing and sale of a knock-off".

This is not a new issue and Steve Madden Ltd were sued last year by Balenciaga for doing much the same thing.

But, when is a high street copy a knock-off?


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Chanel Brand Sues Entrepreneur in Trademark Violation

Chanel No: 5

Chanel Inc. is suing a Lithonia entrepreneur for at least $2 million, claiming the businessman is infringing on the global luxury company’s trademark logo and products.

In a suit filed recently in U.S. District Court in Atlanta, Chanel said Eric Williams is marketing and selling counterfeit products bearing the company’s logo through his Haus of Ebon accessories store at bonanza.com/booths/hausofebon, Chanel said the company is promoted on Facebook and Pinterest social sites.

Williams could not be reached for comment.

Chanel has been successful in going after businesses that the company claims have violated its trademark, joining other major brands determined to protect their products. Microsoft, for example, has sued several Georgia companies to protect its software.

Chanel said the fake products cause confusion and “deceive customers.”

In April, Chanel won an $894,650 judgment against a Las Vegas businessman the company said counterfeited and sold fake Chanel products, according to Courthouse News Service. Last year, an Indiana salon owner was forced to drop “Chanel” from her business’ name.

Chanel said the Haus of Ebon products carrying its logo include cases and covers for phones and other electronic devices and cosmetic cases. The company said the products with its luxury “mark” will be mistaken for “the genuine high quality goods” offered by Chanel.

According to Forbes magazine, Chanel has annual sales of $5.4 billion.

Chanel is seeking profits from any products sold by the Haus of Ebon and damages in the amount of $2 million for each violation of its trademark.


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Gap Back In New Dehli Court Now Green The Gap Trademark Battle

Green the Gap, an Indian company, mainly sells accessories and home decor items made out of waste including beer cans, rubber tyres and fruit cartons.

GAP are back in a New Delhi High Court this time with Indian Retailer Green The only weeks after we reported Two New Delhi Firms In Battle with GAP In Trademark Lawsuit 16/07/2015.

NEW DELHI: Gap, the US apparel company that recently opened its first store in India, is taking legal recourse to defend its trademarks again, this time against small Indian retailer Green The Gap says Live Mint.

In March, the owners of Green the Gap were slapped with a legal notice by Gap asking them to change their name within 14 days. 

New Delhi: An Indian recycling company which uses junk to create accessories is fighting a legal trademark suit launched by US clothing giant Gap Inc. demanding that the firm change its name.

Green the Gap, an Indian company which runs three stores in the country, mainly sells accessories and home decor items made out of waste including beer cans, rubber tyres and fruit cartons.

Vimlendu Jha, founding owner of the firm, which also sells clothing for other brands, accused Gap in an interview last Friday of seeking to “bully” a small Indian company.

In March, the owners were slapped with a legal notice by Gap asking them to change their name and remove any reference to the company from their labels within 14 days.

A month later, the US retailer told the Indian firm it could keep its name for registration purposes but must remove any mention of Gap in their labelling and on their website, Jha said.

“Gap said our company is infringing upon their branding and that we are riding on their goodwill to create confusion in the minds of buyers,” Jha told AFP.

“We were shocked and angered that a company of that size and stature and supposed respectability is getting threatened by a small business,” he said.

The legal notice, a copy of which was seen by AFP, said Gap was “seriously concerned” about the adoption of its “well-known trademark” by the Indian entity.

K&S Partners, the law firm that issued the notice on behalf of Gap, was not immediately available for comment.

But Gap said it “does not comment on pending litigation” in response to an email query from AFP.

Jha added that Green the Gap’s name was an environmental reference.

“We wanted to ask people is it possible to consume less and can we consume green? We upcycle trash which means we add value to junk by creating a new and useful product,” he said, adding that the idea of competing with Gap was nowhere in their minds.

“For us ‘gap’ is a word in the English language that means void, absence. How can you monopolise a common English word?

“Next we will hear we can’t use apple and orange in our lexicon. This is plain ridiculous.”

He said the company was now in verbal negotiations with Gap to try to settle the dispute.

Jha launched Green the Gap five years ago as part of Swechha, an Indian advocacy group he set up to pursue environmental sustainability and proper pay for workers.

The name was inspired by a Swechha education scheme known as Bridge the Gap, said Jha.

Gap, which is the largest casual wear retailer in the US with annual sales of over $15 billion, has some 3,000 outlets in 90 countries across the world. It also owns global brands such as Old Navy and Banana Republic.

Local media reports have said Gap plans to open stores in India some time next year, which would make it one of the biggest global brands to launch in the country.

The government in the past few years has relaxed restrictions for international retailers to set up shop in the country as it seeks more foreign investment.

India’s trademark act stipulates that another company cannot sell products with an identical or confusingly similar label.

Jha said the US retailer’s legal suit should ring alarm bells for the government.

“Opening up the market for larger players must not mean that smaller players are shut out,” he said. AFP

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Two New Delhi Firms In Battle with GAP In Trademark Lawsuit

GAP America

GAP are in a battle with two New Delhi companies in India for trademark violations reports the Economic Times.

The article goes on to say; Gap, the US apparel company that recently opened its first store in India, is taking legal recourse to defend its trademarks here. Gap has dragged two Indian apparel manufacturers to the Delhi High Court, alleging trademark violations for using labels such as Gap-In, Gap-2 and Gap Two.

Priya Rao, a lawyer representing Gap, said that the court appointed commissioners in one case each in Delhi and Bengaluru who conducted raids and seized goods that were considered to have infringed the company's trademarks.

Gap became aware of the violations in January and issued legal notices to no effect, according to the court order in May issued in response to Gap's plea for a permanent injunction to restrain the manufacturers.

In January, the court had said that Gap is a well known company and it has an established reputation in general public for the trademark. "The act of the defendant in selling apparel under the trademark Gap-In is an infringement upon the rights of the plaintiff," the court said, while giving an injunction in January in one of the cases.

In the court documents, Gap lawyers argued that the Delhi Based manufacturer had been using Gap, Gap-2 or Gap-Two logos, which are deceptively similar to that of the San Francisco-based fashion giant.

The court issued an ex parte interim order restraining the defendants from manufacturing, selling or using the trademark and ordered the issue of summons to them returnable on October 12.

Gap sells clothing, accessories and personal care products under the Gap, Banana Republic, Old Navy, Athleta and Intermix brands. Its products are available in more than 90 countries.

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Tory Burch Counterfeiters Ordered To Pay $41M In Trademark Violation

Tory Burch with double T logo pic: via Daily Mail UK

TORY BURCH and former husband, Chris Burch, had finally come to an agreement over their heated legal battle concerning his stake in the brand. Although few details have been disclosed, the pair - who founded the label in 2003, before their split in 2007 - have resolved all pending claims. Additionally, two minority investors had been brought on board - Capital Partners and General Atlantic now found themselves in a new legal wrangle.

Despite the apparent similarities, Lix & J had countersued Tory Burch for unfair trade practices, tortious interference with its business relationships, defamation, and trademark infringement. Lin & J claimed that its Isis Design is inspired by the Isis cross or a Coptic cross, which is a symmetrical cross with short, flanged bars, typically set in a circle. Nonetheless, in addition to finding that Lin & J had fabricated and destroyed evidence, the court ruled against Lin & J. This $41.2 million win for Tory Burch will be another notch added to her designer belt and not to mention her $3 billion empire.

Tory Burch’s TT Design (Left) versus
Lin & J’s Isis Cross Design (Right)

After two years of battle in court, Tory Burch LLC

(“Tory Burch”) wins $41.2 million ($38.9 million in damages and $2.3 million in attorneys’ fees) in its trademark infringement lawsuit against Lin & J International, Inc. (“Lin & J”), which was filed on May 31, 2013, in the U.S. District Court of the Southern District of New York. Tory Burch alleged in its 2013 complaint that Lin & J’s unauthorized use of Tory Burch’s federally registered trademarks and copyrighted works violated trademark counterfeiting, trademark infringement, trademark dilution, copyright infringement, and unfair competition laws. In particular, Tory Burch claimed that Lin & J wrongfully reproduced earrings, necklaces, pendants, cuffs, bangles, and bracelets bearing unauthorised reproductions of Tory Burch’s famous TT Designs.

U.S. Reg. No. 3,029,795; Registration Date: December 31, 2005

U.S. District Judge Denise L. Cote ordered Youngran Kim and her company Lin & J International Inc. to pay $38.9 million in damages, attorneys’ fees of $2.3 million and costs of the action to be determined later, along with interest for the aforementioned until full payment is made, according to court documents.


Friday’s order ends a case first brought in May 2013, which accused Kim of being one of the largest

counterfeiters in the U.S. Kim had argued that she independently created her “Isis cross” design based on another mark sold by a separate company she founded in 2003.


Judge Cote granted summary judgment in favor of Tory Burch in December, saying Kim willfully counterfeited and infringed the designer’s trademarks.


The judge said the evidence showed that the Tory Burch logo has acquired secondary meaning and was entitled to protection, determining that there was no dispute that the public was moved in some degree to buy Tory Burch products bearing the logo because of the source.


Judge Cote also ruled that Tory Burch clearly established a likelihood of confusion with respect to the products in question.

U.S. Reg. No. 4,363,739; Registration Date: July 9, 2013

The judge had previously found
that the defendants had fabricated and destroyed evidence during discovery and struck their opposition papers to Tory Burch’s summary judgment bid. She sanctioned the defendants’ lawyer Howard Z. Myerowitz of Song Law Firm LLC $10,000 for misrepresenting the day he served Tory Burch with the opposition papers and forwarded the issue to the state bar.




The complaint alleged Kim sold
knock-off products to more than 420 wholesalers and retailers, which eventually distributed the imitation jewellery to thousands of sellers.

Representatives for the parties did not immediately respond to requests for comment Friday.

Tory Burch is represented by Natalie L. Arbaugh, Kristen A. McCallion, Michael A. Bittner and Irene E. Hudson of Fish & Richardson PC.


The defendants are represented by Howard Z. Myerowitz and Jeremy M. Doberman of Song Law Firm LLC.
The case is River Light V LP et al. v. Lin & J International Inc. et al., case number 1:13-cv-03669, in the U.S. District Court for the Southern District of New York.


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Skechers Sues Steve Madden For 'Go Walk' Patent Infringement

Steve Madden 

California-based Skechers USA Inc. said today it is suing Steve Madden Ltd. for infringing on its patented Skechers Go Walk line.

The suit, filed in the U.S. District Court for the Central District of California, is seeking damages. According to the lawsuit obtained by Footwear News, Skechers argues that Madden’s Setta style, which has a woven elastic upper and molded rubber bottom, directly infringes on seven patents owned by Skechers that are used in its Go Walk collection.

Skechers states in the suit: “The innovative design of the Skechers Go series and other

One of the Skechers' Go Walk patents (top)
and the Steve Madden Setta style (bottom).

such styles have significantly contributed to the company’s recent successes …. The fame and popularity of various styles of shoes both within and beyond the Skechers Go series is evident in the fact that millions of pairs of Skechers Go series shoes have been sold since their introduction on the market.”

“While we prefer to compete in the marketplace, Steven Madden is selling its infringing footwear to Skechers’ wholesale customers and in other sales channels where the Skechers products are sold, and we believe this is causing us enormous damage,” said David Weinberg, COO of Skechers, in a release. “We plan on taking similar action against any company that develops any products that infringe on the patents of the Skechers Go Walk or any of our other popular product lines, and any retailer that sells the Steven by Steve Madden Setta style.”

Skechers declined additional comment. Steve Madden also declined a request for comment.

It’s not the first time the two brands have gone to court. The most recent case in 2011, Skechers sued Madden for infringing on its patented Twinkle Toes line. The case was settled out of court.

The Steve Madden Setta shoe style.

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Help Us Fight Fakes, Alibaba's Impassioned Plea to Global Brands

Jack Ma Alibaba Founder pic: Bloomberg News

Alibaba's head of internet security Ni Liang makes an impassioned plea for help to stop fakes to Global brands in an exclusive interview today with John Ruwitch, Reuters.

"HANGZHOU, China (Reuters) - When it comes to fighting fakes, Alibaba's head of internet security says cooperation beats the courtroom any day.

Ni Liang, who runs the Hangzhou, China-based company's anti-counterfeiting operations, was speaking to Reuters days after Gucci, Yves Saint Laurent and other luxury brands owned by Paris-based Kering SA sued Alibaba in New York, alleging the e-commerce giant had knowingly made it possible for counterfeiters to sell fakes.

Ni said brands had a better chance of succeeding in clamping down on the pervasive counterfeit trade if they talked to Alibaba, instead of suing it.

The company has been dogged for years by accusations that it doesn't do enough to fight intellectual property rights violations and also listed counterfeits as a risk before its record-breaking $25 billion IPO in September.

"I strongly believe that spending money on lawsuits could result in a completely different outcome than cooperating with us," Ni said in an interview during a rare visit by the media to Alibaba's internet security headquarters.

"If a brand doesn't cooperate with us we'll still fight fakes for them... But when we cooperate we can fight better."

Alibaba employs some 2,000 employees to battle counterfeits. At its internet security command centre, a computer screen covering an entire wall tallies in real-time attempts by vendors to list suspected counterfeits and shows which brands they were trying to sell. Vendors known to have attempted to sell fakes are also tracked.

Another 5,000 "volunteers" around the country, including sellers and buyers, help identify vendors of phony goods, Ni said, adding that Alibaba spent about 100 million yuan ($16 million) last year to covertly buy products and check their authenticity.

Ni said this figure could rise to 150 million this year. "I believe we spend more than any platform or company in the world on anti-counterfeit efforts," he added.

REAL-TIME

Alibaba's two popular platforms are Taobao, on which consumers buy and sell goods to each other much like they do on the marketplace run by U.S.-based eBay Inc , and Tmall, an online shopping mall that vendors use to sell their products, similar to Amazon.com Inc .

The company, founded by Jack Ma, controls 80 percent of all online retail in China, handling goods worth about $97 billion in the quarter ended March 31.

Alibaba has so far signed more than 1,300 memoranda of understanding on cooperation with brands, including Microsoft , Apple and Louis Vuitton , to fight fakes, Ni said.

Overall, Alibaba's platforms have seen a drop in the number of counterfeits as a percentage of goods traded, Ni said, but added the number of fake products discovered by the company rose two-thirds to 130 million last year from 80 million in 2012.

Counterfeit goods can be found on all Chinese e-commerce platforms, despite efforts to fight them, because of the sheer scale of the problem and the huge demand for these products.

No pictures of the internet security war room are allowed. An Alibaba spokeswoman told Reuters they could not name any of the brands being targeted by fraudsters but data on the tracking screen showed more than 5,000 attempted listings of suspected fake products had been detected and removed by noon.

A search for "Gucci" and "Guggi" on Alibaba's eBay-like Taobao site also highlights the complexity of the problem.

Ads appear for products that look like genuine articles as well as clear knock-offs. Ni said determining authenticity from photos is notoriously difficult, and products that bear a likeness to the real deal may not infringe upon intellectual property rights.

Brands and industry groups have complained that Alibaba makes it difficult to remove suspect product listings. Ni said last year his team removed 12 million listings after receiving complaints involving about 20 million, but the process can be lengthy.

About 40 percent of all items flagged were either genuine or it was impossible to conclude that they were fake, he said.

"We have to have an audit mechanism for complaints made by brand holders, and this audit mechanism increases the time it takes to get fake products pulled down," he said, adding that Alibaba intends to double the number of cases it sends to the police for prosecution this year."

(Additional reporting by Jane Lee in SHANGHAI; Editing by Miral Fahmy)

Read the original article on Reuters.


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