Louboutin v. YSL Forced to Agree to Disagree

The fashion law community has been carefully watching Christian Louboutin and Yves Saint Laurent battle over red-soled shoes.  CanadaFashionLaw has kept its readers in the know every step of the way.  We’re pleased to provide a summary on the much anticipated appeal decision.  (If you’ve been hiding under a rock and need to catch up to this whole dispute click here). 

At first the twitter-verse heralded this decision as a definitive win for Christian Louboutin.  However, on closer examination this appears to be more of a win-win (or a lose-lose) situation.  Ultimately, co-existence is the name of the game – a concept that is common in the trade-marks world.  

First and foremost, the Appeals Court found fault in the District Court’s holding that a single color cannot serve as a trade-mark in the fashion industry.  (I can hear Tiffany’s breath a sign of relief).  Second, the Appeals Court confirmed that Christian Louboutin has acquired secondary meaning in the red-soled shoe.  However, here is the crux of the decision that lead to co-existence in the marketplace.  Christian Louboutin has only acquired secondary meaning of the red-soled shoes in respect of shoes that are in stark contrast with the red-soles.  So, Yves Saint Laurent’s use of red-soles on red shoes is not problematic.  As such, the Appeals Court has ordered that Christian Louboutin’s trade-mark registration be amended to reflect this limitation in the scope of protection, specifically:

 

“…to limit the registration of the Red Sole Mark to only those situations in which the red lacquered outsole contrasts in color with the adjoining “upper” of the shoe”.

It will be interesting to see if this judgment has wider implications and serve as a tool to competitors looking to limit a wide scope of brand protection secured by heavy hitting industry players.

Australian Law Butts Out Branding

This is not altogether related to the fashion industry but it’s pretty darned interesting!  And, let’s face it, here at CanadaFashionLaw, we can tie almost everything back to fashion!!!! 

 

Australia recently enacted probably the toughest law against the tobacco industry (commonly being referred to as the ‘plain packaging law’), which was recently endorsed by Australia’s highest court. 

 

Under this law, tobacco companies can only display the warning image depicting the perils of smoking on the tobacco packaging.  We’ve become accustomed to these images on tobacco packaging in Canada (pictures of eroded and disease gums and haunting images of cancer-eroded lungs).  What sets Australia’s new law apart is that these types of images are the only images allowed to be displayed on the packaging.  No trade-marks.  No logos.  No branding.  Just images of imminent death and decay.  That’s pretty harsh.  It definitely sends a message. 

 

Not surprisingly, tobacco companies in Australia were none too pleased about this and called into question whether the law was actually legal given that it devalued intellectual property rights.  Australia’s judiciary chose health policy considerations over branding rights.  The law will come into effect in December.  This will prove to be an expensive re-packaging project for tobacco companies.

 

International anti-smoking organizations are heralding this new law as progressive and necessary.  In fact, anti-tobacco lobbying groups in Canada are looking to amend Canadian legislation to mirror Australia’s tough stance.

 

So let’s look at the bigger picture here.  Oftentimes when laws are created, there is an underlying purpose – a policy.  In some way, the government is trying to achieve a higher purpose.  The legislation is simply the vehicle to this purpose.  Take the Trade-marks Act.  The overriding policy consideration is that the government wants to protect the consumer from confusion in the marketplace.  Thus, there are checks and balances in the Trade-marks Act that protect the consumer above and beyond the brand owner.  In the instance of Australia’s new law, there was a greater concern over public health than brand owners’ rights.  Where will the line be drawn?  Why is the tobacco industry targeted?  Will we see these types of developments happen in other industries?  The alcohol industry?  Or the food industry?  What about the fashion industry?  What if there was an increasing concern over animal rights whereby leather products became the target of tougher legislation that trumped intellectual property rights. 

 

We’ll keep you posted on developments to see if the Canadian lobbying groups get any traction.

French Connection Reaches out to Musicians

We all know that fashion and music are inextricably linked.  CanadaFashionLaw recently came across an interesting program offered by French Connection that helps Canadian musicians get noticed.  It’s refreshing when a large well-known brand lends its platform to burgeoning artists. 

The Artist of the Month program features one Canadian artist per month in the tracks played in all stores across Canada.  The album or single is featured at the cashier and consumers are able to obtain a free single.  Occasionally, French Connection will host special events whereby the artists play live.  However, this type of exposure is more limited to special events (i.e. Toronto hosting the Canadian Music Week).

It would be nice to see other large retailers reach out to Canada’s burgeoning artistic community. 

Designers: Get Your Hustle On!

Here at CanadaFashionLaw, we geek out on branding law.  But you know what really gets our mojo going (other than Ryan Reynolds and Tyrese)?  Helping emerging designers get exposure!  Now that summer is coming to a close (sad face), it’s time to get our hustle on again!  Ever eager to help Canadian designers put themselves on the fashion map, CanadaFashionLaw has put together a quick little guide to some opportunities geared towards helping designers at different levels get exposure.

Toronto Fashion Week

North America’s second biggest fashion show is back with some panache as IMG gets its well-connected hands on it.  (Click here to read up on why Toronto Fashion Week is getting a mani-pedi-botox).  Running from October 22 to 26, 2012 at the David Pecaut Square, Canada’s fashion darlings can share the spotlight with the likes of Joe Fresh, Pink Tartan, Lucian Matis, Rudsak, Vawk, etc.  Designer submissions are now being accepted.  More information can be requested from designers@fdcc.ca.  

Fashion's Night Out

Debuting in Canada for the first time, Toronto’s retail stores will be open late into the night on September 6, 2012 as part of renowned international fashion event, Fashion's Night Out.  (Click here and here to get a better understanding of Fashion's Night Out).  As always, the Toronto Fashion Incubator is lending a hand to help more junior designers get a piece of the action by opening up their doors to host an accessories and apparel shopping soiree as part of Fashion's Night Out.  If you’re interested in participating, you better drop a line as soon as possible to tfi@fashionincubator.com.

Katwalk at Cube Nightclub

Looking to shake up your Tuesday?  Every Tuesday night during the summer, Toronto’s Cube nightclub hosts a fashion event debuting the 2012 Fall/Winter collection of a number of retailers.  Examples include French Connection and Dear Frankie.

Toronto Fashion Incubator’s Press & Buyers Breakfast

Toronto Fashion Incubator continues to impress us at CanadaFashionLaw.  On October 2, 2012, it hosts its annual trade show geared towards connecting Canada’s emerging designers with the press and buyers.  This event is a great opportunity for new designers to get in front of key decision makers on a one to one basis.  If you’re interested in getting more information, contact TFI directly at tfi@fashionincubator.com.

Fashion Thursdays at Locus 144

Nestled in the heart of Toronto’s Liberty Village is Locus 144, a fantastic lounge that caters to those that have a passion for hip hop and fashion.  (A perfect combination!)  Locus 144 hosts fashion events on Thursdays that are geared to helping designers get their feet wet by hosting their own runway show.  Well-versed in hosting a myriad of events, Locus 144’s amicable management team are eager to assist upcoming designers get exposure in Toronto.  If you’re looking for information on hosting an event, show or photo shoot at Locus 144, drop a line to info@locus144.com.

If you’re going to any of these events, there’s a pretty good chance we may bump into each other!  Drop us a line if you are!

Fashionistas, do you have your ear to the ground on other events happening in Canada that will help designers get exposure?  Let us know!  CanadaFashionLaw loves to hear from you! 

Canada Gets Its Shop On!

A few weeks ago, CanadaFashionLaw broke the news that shopping event extraordinaire Fashion's Night Out was launching in Canada.  Almost instantly, the Toronto fashion community got very excited!  (Ya, that's right: Toronto Life cited CanadaFashionLaw as the source for the breaking news!  If only there was a "brush your shoulder off" emoticon!).

It looks like it's not only Toronto that's going to get its "shop on' on September 6, 2012.  Fashion's Night Out will be occurring throughout Canada in B.C., Ontario and Quebec.  Happily, it's not just confined to Vancouver, Toronto and Montreal, as some may presume.  Smaller cities in Canada are also getting a piece of the after-hours shopping pie, such as Surrey, Chatham and Cookstown. 

If you want to get more information on which stores and malls are participating in Fashion's Night Out, hit up www.fashionsnightout.com.  For the more Toronto-centric crowd, check out www.fno-toronto.com.

Happy shopping, y'all!