January 11, 2013
But a recent Supreme Court victory for Nike protects its ownership over smaller, subtler details. The decision was only reached on Wednesday, but legal analysts are already predicting the decision will aid luxury-goods makers, who until now have had a hard time going after companies that swipe the looks of their top-selling products.
In 2009, Nike sued a small shoe maker, Already, alleging that the detailing on Already’s “Soulja Boy” and “Sugar” sneakers infringed on design elements of its Air Force 1 line of shoes, which have been a best sellers since their introduction in 1982.
Among the Air Force 1 features Already was accused of infringing were the eyelets and the stitching. To me, those are elements the average consumer may not notice, but are also factors that contribute to the overall impression of the shoe.
As I mentioned, this could have implications for the fashion industry as a whole.
Slapping a counterfeit St. John label on a garment that did not come from the maker of high-end women’s knitwear is one thing, because that’s out-and-out lying. But making a trench coat and lining the collar with a plaid-style fabric in a way that “just so happens” to mimic Burberry has been another; unless it can be demonstrated somehow that the maker of the knockoff trench consciously imitated Burberry, there was not too much Burberry could do. After all, Burberry doesn’t own the concept of a trench coat or plaid detailing.
This ruling, however, gives fashion companies the ammunition they’ve been lacking — a precedent that upholds the argument that an imitator should be barred from clearly aping a certain product or look. As I read it, this case provides some legal recognition for things like the kaleidoscopic feel of a Pucci scarf or the clean, trim lines of a Jil Sander coat. Courts have shied away from recognizing those characteristics because they are subjective, hard to articulate and even more difficult to define, but maybe now that is changing.