Susan Scafidi, John Maltbie, Jana Checa Chong, Mary Kate Brennan, Gerald J. Ferguson, Photo by Laurel Marcus
“Alterations & Altercations: How Far Can Fashion Trademarks Stretch?” was the seminar topic for Fashion Law Institute’s Friday morning NYFW sold-out edition. A discussion included panelists John Maltbie, Director of Civil Enforcement and Intellectual Property at Louis Vuitton; Jana Checa Chong, Senior Intellectual Property Counsel at Louis Vuitton; Gerald J. Ferguson, Partner at BakerHostetler; and Mary Kate Brennan, Senior Attorney at Dentons. As usual, panelists were speaking off the record, so I will not be attributing quotes from them.
The lawyers – photo by Laurel Marcus
Founder and Director Susan Scafidi reminded us that it is also the Institute’s “quinceañera.” “Twenty years ago I started talking about this and 15 years ago I actually did it,” she opined during opening remarks. Instead of the usual fashion bugaboos such as tariffs, governmental rules and regulations, and that demonic thing known as AI, Professor Scafidi wanted to go to a “warm, fuzzy, happy place.” Apparently, trademarks are like Disneyland to fashion lawyers.
In some cases, including Lululemon v. Costco, Coogi v. Louis Vuitton, and Vetements’ inability to register their mark, trademark courts and lawyers are kept very busy. The virtual world has its own issues, such as NFTs (Non-Fungible Tokens), exemplified by the MetaBirkins and Hermes. However, all I’m going to say about that is that these digital “artwork” files were sold “under wraps,” much like a Labubu in a surprise box. Let’s “unwrap” some of the physical world cases.
Lululemon is accusing Costco of selling dupes of their costly jacket, based on the curvilinear design lines on the front and back, as well as the horizontal yoke featured on the back of the garment. They brought 12 different cases, making it very hard to follow. Counterfeit is much easier to prove than infringement in this culture of dupes.
If the customer is aware it’s not actually Lululemon, it hurts your case – you must prove confusion. This lawsuit included the terms “ABC trade dress,” which apparently stands for “anti-ball crushing” crotch area design – is this for comfort or merely ornamental? Rivets were termed “decorative metallic circles,” and even kangaroo pockets with outlines around them were called into question. Can these design details be considered proprietary? Is it achievable to enforce? Is there evidence of willfulness in copying? Malice aforethought?
There is also a risk analysis in bringing some suits – you don’t know what judge you are going to get. It’s even possible, if you lose, to have some of your existing marks cancelled, as Adidas did after suing Thom Browne for using somewhat similar stripes (four versus three) in his clothing and shoes.
Left: Louis Vuitton Right, Coogi
In Coogi Partners v. Louis Vuitton, Creative Director Pharrell Williams was accused of violating Coogi’s copyright and unregistered trade dress in his Fall/Winter 2025 collection by using similar knitting techniques to those typically employed in the multicolored Australian sweaters popularized in the 1990s. LV produced one in browns and autumnal tones and one in pinks, which they said were “Coogi inspired.” Interestingly, Coogi collaborated with Rag & Bone to produce a black-and-white sweater.
The Vetements case is interesting because if you want to register a word in a foreign language, it’s immediately translated. Since “Vetements” is French for clothes, it was determined not to be registerable. The brand was given trademarks in certain classes (categories of products) but not others, including clothing. When they changed the proposed mark to exclude some of the letters, such as VTMNTS or VTM, these were approved for clothing.
“I’m hoping that the Supreme Court will take this case,” Prof. Scafidi said. “The assumption that folks will stop and translate is aspirational.”
Sylvania Drama and Calico Critters
Lastly, there was a bit of frivolity concerning a case involving Epoch’s Calico Critters versus TikTok’s Sylvania Drama, who used their felt animal figure toys (bunnies, kittens, and squirrels, oh my) in compromising situations.
Although Calico Critters has collaborated with brands such as Marc Jacobs, Kate Spade, and Away Luggage, the Sylvania Drama situation (better known as GossipSquirrls on the viral platform) is deemed an undesirable use, resulting in a lawsuit for copyright infringement. One panelist remarked that the TikTok viral skits, while funny, can be seen as “tarnishing (the brand) as a lot of these characters have drug problems.”
Laurel Marcus & Susan Scafidi, photo courtesy Fashion Law Institute
In conclusion, “Americans like to litigate,” said one panelist, “but they often settle, usually confidentially and filed under seal, so we don’t know what the precedent is. We’ll keep seeing these cases trying to get decisions that help clarify it for us.”
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