Balenciaga, The French Fashion House, Sues Designer Steven Madden over Copycat Bag.

Balenciaga, the former Haute Couture, Paris-based fashion house has filed a law suit (May 20^th 2014) against the footwear company Steven Madden Ltd in the Southern District of New York, alleging that the footwear brand has manufactured, advertised, offered for sale and sold bags which replicate and violate the trade dress of its recognised Motorcycle bag shown below.  

Designed by Nicolas Ghesquière, (the now current creative director of LMVH), Balenciaga has been selling the iconic classic bag since 2000. According to the lawsuit, Balenciaga has accused the Madden brand of copying “the shapes and design elements of Balenciaga’s Classic Bag, and producing a bag featuring identical or nearly identical shapes and design elements but sold at a significantly lower price.” Unlike in the UK, the US does not have design protection, which protects design right the three-dimensional shape of a design. Therefore in the US, the motorcycle bag is protected by what is called trade dress – a subset of trademark law, which can be used to protect the overall appearance of an item. This extends to features such as size, shape, colour or colour combinations of a product or anything that creates the overall look and feel of a brand in the marketplace. 

In order to be successful in a trade dress lawsuit it is essential that the consumer believes that the trade dress is a source indicator of distinguishing the goods and services of one from those of others. The trade dress issue here relates to the front design of the Motorcycle bag which was federally registered in 2007. Importantly the features which make up the trade dress in question must not serve a utility or function outside of creating recognition in the consumer's mind. Looking at the design below, the Goss-IPgirl wonders whether this is merely functional or actually a recognisable indicator of source?

Balenciaga’s registered Classic Bag Trade Dress drawing

Balenciaga argue that the Classic Bag Trade Dress depicted above originate exclusively with them. And that the Balenciaga Classic Bag Trade Dress is unique, inherently distinctive and non-functional. Interestingly, this is not the first time that Balenciaga the Parisian fashion house has filed has a lawsuit against the Steve Madden, Ltd, the founder of the NYC footwear company that bears his name. In late 2009, Balenciaga filed a lawsuit against Steve Madden for allegedly copying the label's multicolor Lego heels from the fall 2007 collection. 

Also in 2009, Alexander McQueen also filed (and subsequently settled) a lawsuit against Madden for copying its black Faithful bootie. 

The case also draws attention to the NYC based footwear company’s reputation for producing knock-off designs. Balenciaga argue that the Steve Madden brand has operated “a pattern of misappropriation of Balenciaga’s designs, most recently with the copying of the Balenciaga’s CREEPER shoe design.” 

Balenciaga [Left] Steve Madden [Right]

What this shows is that contrary to the belief that luxury fashion houses are not concerned about fast fashion companies imitating their design, luxury and other higher-end companies are willing to protect their designs & revenues against companies down the lower end of the food chain.

Balenciaga has asked the New York federal court to prevent Steve Madden from producing the “studied copy” of its Motorcycle bag. In the lawsuit, it is alleged that such sales “can confuse customers, create a false impression that Steven Madden's products are Balenciaga's, and hurt the French company's goodwill, reputation and sales.” 

The case is Balenciaga v. Steven Madden Ltd et al, U.S. District Court, Southern District of New York, No. 14-03627.

BUSINESS OF FASHION – BALENCIAGA VS. NICOLAS GHESQUIERE TRIAL DATE SET IN PARIS

A couple of days ago the trial date was set for Balenciaga's lawsuit against Nicolas Ghesquière for breach of contract. The business of fashion is a complex game and the Goss-IPgirl has been intrigued by this case, which involves an action for breach of confidentiality after the he spoke negatively about the fashion house in a magazine interview.

Nicholas, now the new creative director of LMVH, was at the top of the French fashion house Balenciaga for 15 years, when the brand announced last year that Nicolas Ghesquière was leaving. Revealing his reasons in an interview to System Magazine. Ghesquiére said:

'It was around that time that I heard people saying, ‘Your style is so Balenciaga now, it’s no longer Nicolas Ghesquière, it’s Balenciaga’s style.’ It all became so dehumanised. Everything became an asset for the brand, trying to make it ever more corporate – it was all about branding. I don’t have anything against that; actually, the thing that I’m most proud of is that Balenciaga has become a big financial entity and will continue to exist. But I began to feel as though I was being sucked dry, like they wanted to steal my identity while trying to homogenise things. It just wasn’t fulfilling anymore.'

The Goss-IPgirl notes that although freedom of expression exists in French law, certain limitations are prescribed by law, especially in instances where an employee or former employee tarnishes the image of an enterprise. According to court documents these comments violated the “separation agreement” that Ghesquière signed on October 17, 2012, which said that he 'refrain from declarations that could hurt the image of Balenciaga.' Lines mentioned in the lawsuit include, 'I feel as though I was sucked dry' and 'they wanted to steal my identity.'

The court document says: 'Balenciaga didn’t want its designer to justify his departure by criticizing the house that employed him. In general, the parties, knowing the hypersensitivity of the fashion industry to changes in creative direction, were forbidden from commenting on the break in order to avoid any detrimental effect on their economic interests or their image.'

The court documents also say that, Balenciaga is seeking damages of 7 million euros over the interview in System magazine. And also, according to the filing, Ghesquière was paid 6.6 million euros as compensation for breaking his employment contracts, signed in 2010 and 2012.

The hearing will take place in in the Tribunal de Grande Instance of Paris on July 1st to the hear oral arguments of this civil law case. This could be an interesting one for both freedom of expression and contract law, so let’s watch this space.

DÉJÀ VU: BALENCIAGA FALL 2011 AD CAMPAIGN VS BALMAIN SPRING 2014 AD CAMPAIGN

We recently tweeted about how copying in the fashion industry democratizes fashion and is an integral part of the nature of the fashion industry. With that in mind, the Goss-IP girl came across advertising campaigns of two of the most important historical French labels in fashion. The French fashion house Balmain ad photographed by Inez and Vinoodh [right], featuring pop star Rihanna,  might have been an inspired by that of Steven Meisel’s earlier Fall/Winter 2011/12 campaign for Balenciaga [left]. The campaign’s graphic set is almost exactly the same and the resemblance of the Mise-en-scène for these two adverts is so similar, you might wonder if your experiencing deja vu?

According to Susie Bubble, both photographers are under the influence of French artist Jean Pierre Raynaud, who is most famous for his investigation of space at La Maison in La Celle-Saint-Cloud in Paris.  Who in 1969, began to build this house, with an interior composed almost entirely of 15 x 15cm white tiles.

It’s no secret just how much Rhianna inspired Balmain’s creative director, Olivier Rousteing Spring 2014 Collection. Giving testimony to her as an ‘icon’ he has said: "In front of the camera, she makes you feel like she is the only girl in the world…When the woman that inspires you wears your creations, your vision feels complete." Using the icon to front his ads, has gone down well, congrats to him for his efforts, but the Goss-IPgirl wonders, if somewhere in the world of fashion Steven Meisel is raising an eyebrow.