Irenebrination followers have been encouraged to become more interested in fashion law since 2010. Yet, eight years ago (which in fashion history is like 800 years ago...) the focus was more on getting to know laws and regulations about trade, labour and production.
In more recent years, the attention reshifted instead on trademarks and copyright matters. You may argue that these issues have always existed in fashion, but things seem to have radically changed, altered also by the speed of the fashion rhythms, the easy way you can access lost fashion images and obscure references on digitalised archives, blogs and social media (and the temptation to copy what they portray...) and the lack of proper time to research, experiment and produce genuinely innovative garments and accessories (mind you, these are not excuses). The result is that at least once every two weeks (but in desperate times you even get the once a week routine...) a brand sues another for some kind of copyright infringement case.
A couple of weeks ago we looked for example at the case of Helly Hansen Vs Off-White, but in the last few days it was announced that there was another one, this time between City Merchandise Inc. and Balenciaga.
New York-based City Merchandise, Inc., a producer of souvenir items, filed indeed a complaint against Balenciaga America in a New York federal court (City Merchandise, Inc., v. Balenciaga America, Inc., 1:18-cv-06748-JSR (SDNY)).
The object of the case is the "Multicoloured New York" line of bags that looks remarkably similar (if not identical...) to souvenir bags tourists can buy in New York City's gift shops produced by City Merchandise Inc (well, actually Balenciaga also did a pink hoodie with the same skyline...). In the complaint City Merchandise states "The overall effect of the Defendant's knock-off design is not only confusingly similar to Plaintiff's authentic design, but it is virtually indistinguishable."
There is only one thing that distinguishes the items - the cost. A tote by City Merchandise costs around $20, Balenciaga will set you back almost $2,000 (actually you can now get the bags with a hefty discount on different sites, proving they weren't that successful after all...).
City Merchandise has been producing for over 30 years souvenir items and it has been using the New York skyline design on its products since 2015, while Balenciaga maintained a copyright registration in the U.S. since February this year.
In many ways it is difficult to disagree with City Merchandise, as the similarity for what regards the image, its colours, perspective and general layout is incredibly striking. If Balenciaga's Creative Director Demna Gvasalia ever thought that it was legitimate to copy a kitsch yet fun souvenir bag, maybe thinking nobody would have found out or that there was no copyright on it, well, he got it really wrong.
Yet, while Gvasalia didn't do his research, City Merchandise did its own in-depth investigation, highlighting in the complaint how Gvasalia has a "dubious reputation in the fashion industry" and has often been called out for copying others' designs or appropriating other people's work (remember the Ikea and Ruff Ryder cases or the elephant in the room situation?).
The complaint (that was in a way triggered by a tweet in which Fashionista Editor-in-Chief Alyssa Vingan spotted the similarity between two tote bags - the tweet is actually included in the complaint) also mentions an article that appeared in People magazine on December 20, 2017 in which Gvasalia stated "every garment I do is based on a garment that already exists; I don't invent anything new" (that is definitely true, see also the embarrassing case of the luxury bag with the stock photo image...).
City Merchandise is now seeking injunctive relief (which means that, if the Plaintiff wins the case, Balenciaga will have to immediately and permanently cease all sales of the copyright infringing items), and recovery of damages and Balenciaga's profits and/or statutory damages, plus attorneys' fees. It is easy to see that this is an easy case that will end up in favour of City Merchandise, while Balenciaga will probably be willing to quietly settle things down (mind you, as stated above, the Balenciaga goods ended up being discounted, so the sales may be lower than expected and City Merchandise may not get what it expects, still it is worth trying...).
So it looks like playing around with the concepts of luxury and kitsch, real and fake, elegant and cheap in a collection only pays when you come up with something genuinely original, rather than entirely copied. But that is not the real moral of the story: the lesson you should learn from this umpteenth case of copyright infringement is that, if you want a career in the fashion industry, you should opt for fashion law rather than fashion design, cos that's where the money is (as we stated in multiple previous posts...).
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