Friday, January 25, 2008

Fashion Maven Diane von Furstenberg Sues Target for Copyright and Trademark Infringement Over “Spotted Frog” Design

The media was abuzz today about the lawsuit filed against Target Corp. (“Target”) by Diane von Furstenberg Studio, L.P. (“DVF”), the limited partnership established by Diane von Furstenberg in 1997 to sell her “signature” line of dresses, over alleged copies of her famed “wrap dresses” being sold at Target stores. The news stories on the lawsuit in Reuters and Associated Press were picked up by numerous news outlets.

DVF has a history of filing similar lawsuits against retailers that sell dresses and other products that copy her “signature” designs. While most of the press about DVF’s lawsuits have focused on the allegations of “copyright infringement” (because most of DVF’s designs are copyrighted), the complaints typically include some trademark infringement allegations – specifically, false designation of origin and unfair competition.

Although I haven’t seen the actual complaint against Target, it is likely to be similar to the lawsuit DVF filed last year against Forever 21, which involved allegations that Forever 21 was selling dresses and blouses with nearly identical print designs (the same scale and colorway) as those copyrighted by DVF in several copyright registrations (“Small Dentelle,” “Flower Lace Band,” “Mimosa,” and “Scattered Stones”). See Diane Von Furstenberg Studio, LP v. Forever 21, Inc. et al, Case No. 07-cv-02413 (S.D.N.Y.). A copy of the first amended complaint in that case can be downloaded here. A good blog posting on this particular case (with pictures) can be found here.

In the instant complaint, DVF is going after Target for dresses which copy the “scale, pattern, and colorways” of DVF’s copyrighted “Spotted Frog” Design that DVF registered with the U.S. Copyright Office on September 13, 2006. See Copyright Registration No. VAu-704-976.

"Spotted Frog"

The design was apparently introduced at Furstenberg's Spring 2007 fashion show during New York Fashion Week in September 2006 – and appears on dresses, luggage, handbags and other items.

While DVF sent a letter to Target last Friday notifying Target about the allegedly infringing dress, and Target subsequently removed the dress from its website, the complaint alleges that the dress is still being sold at Target’s retail stores.

Vegas™Esq. Comments:
Given DVF’s past success with these types of lawsuits, I see no reason to believe this case will be any different. The parties will reach some kind of settlement.

I will leave the copyright issues raised by DVF's lawsuits to others (i.e., DVF’s use of its design copyrights to essentially stop the sale of a dress style that clothing manufacturers are typically free to imitate).

As for the false designation of origin and unfair competition claims, DVF’s complaint in Forever 21 described its “products” as high-quality and superb design that have achieved outstanding reputation among customers, especially fashion conscious women. In addition, the complain bragged how DVF’s products are sold in high-end department stores such as Barney’s, Neiman Marcus, and Saks Fifth Avenue as well as on DVF’s website.

However, given the worldwide renown and high-end reputation garnered by DVF’s products, can the company really argue that consumers are likely to be confused with respect to the origin of similar looking dresses sold at Target? Without sounding too condescending to Target customers (after all, I’m a Target shopper myself), most Target customers seeing a dress on the racks with a pattern resembling the above “frog” pattern on it (or anything similar) are not likely to remotely associate it with DVF (much less be confused as to its source or origin). And those fashion conscious shoppers who know enough about fashion to recognize a DVF design when they see one are also savvy enough to know that a genuine DVF dress would never be sold at a not-so-high-end store like Target, and therefore, they are not likely to be confused as to source or origin or believe that the dress is somehow approved by DVF.

1 comment:

sher said...

Very interesting. I have one of the DVF spotted frog dresses, and when I saw the Target dress, I immediately recognized the DVF print. I did assume that it was not affiliated with DVF (a "knockoff"). At any rate, I have pictures of the actual dresses posted in my blog, if you are interested.