Drawing
a comparison between fast food and fast fashion, Moschino's new creative
director, Jeremy Scott, took inspiration from McDonald's for his debut runway
collection during Milan Fashion Week. The
capsule collection
that is being lapped up faster than you can say ‘milkshake with fries,’ turned
McDonalds Golden trademarked arches into a curved heart-shaped 'M for
Moschino and, weighing in at more than just a few pounds, Moschino's red, happy
meal style quilted leather bags, served up on a red tray have already sold out
at a price of $1,265.
Nonetheless,
despite the success of the debut collection, the striking iconic trademarked
references used, in particular left many of us questioning whether there were
any legal implications for trademark dilution or infringement. This legal
academic, after Anya Hindmarch supermarket sweep ‘counter culture couture
collection’ at London Fashion Week, had been given serious though to the legalimplications of Andy Warhol style pop culture references used in fashion, and
on this very topic, this week over at the Business of Fashion, a very interesting and well
written article
by Toronto based lawyer Anjli Patel addressed just that… ‘did the house dilute
McDonald’s famous trademark?
Focusing in particular on Moschino’s use of the ’M’ logo and colours
across their collection, in her article written from a US perspective, Patel
notes that: “in the United States, where McDonald’s is headquartered, the owner
of a famous mark that is distinctive (in this case McDonald’s) has recourse
against another party (Moschino) for using a mark in a commercial context that
is likely to cause dilution by blurring or dilution by tarnishment of the
famous mark, regardless of whether any confusion, competition or actual
economic harm occurs.”
Trademark dilution prevents others from using a mark in a way that would
lessen its uniqueness. On the legal concept of dilution, Patel highlights that:
“Dilution by blurring occurs when an association arising from the
similarity between a mark and a famous mark impairs the distinctiveness of the
famous mark, [from being identified as the a single source of its goods
and services]. The law lists six factors that a court may consider in making
its decision. One factor is the degree of similarity between the mark and the
famous mark. For example, other than curving inwards the colours, scale and
style of the heart-shaped motif are very similar, if not identical, to the
Golden Arches.” Another factor “is whether the user of the mark intended to
create an association with the famous mark…because of how the heart-shaped
motif [is] presented in the show. [For example] applied to[the] handbag, which
is placed on a fast food serving tray.” Coupled with fact that Moschino’s Fall/Winter 2014
collection is titled "Fast Fashion - Next Day After The Runway," drawing
an association with fast food. The suggestion seems likely.
Putting US law aside for a moment, under European law McDonald would
also be entitled to prevent Moschino from using the "M" Golden arches
trademark because of their reputation in the Community, According to EU law use
is prohibited if the unpermitted use “is detrimental to the distinctive
character or the repute of the trade mark” or “takes unfair advantage of” the
mark. In both the US and EU a dilution claim would most likely be successful,
as it, unlike trademark infringement, does not require a showing of a
“likelihood of confusion” amongst consumers, and it seems unlikely that most
consumers are going to associate or confuse McDonalds with high fashion.
Yet,
this is all speculative as no actual legal proceedings have been brought, and it
seems that no legal proceedings are likely to be brought the Goss-IPgirl came
across a series of tweets by McDonalds that appear to be endorsements from the
fast food chain, that puts to bed any concerns about legal proceedings.
The
fast food company posted an image from the Moschino show to its Facebook page,
along with the following comment: “Looking good, MOSCHINO! Milan Fashion Week
has never been so stylish.”
The
company also tweeted from the McDonalds official twitter page at ElleMagazine
with the comment “the new fashion trend is spreading fast round here too.”
And also tweeted a comment (later retweeted by Jeremy Scott) “Do you
ever look at yourself in the mirror and think, this outfit is missing a #Bigmac.”
Food for thought? I think it’s easy enough to answer that question.
Even though no legal proceedings have been brought, it is noted that if
legal action were to be taken, Moschino may be able to rely on the defence of
parody, “something which has artistic merit and critical function, and is
covered by law. But in the US as “the law does provide that a parody is an
exception to dilution, but only if the defendant does not use the parody as a
designation of source for its own goods and services. In other words, the
exception does not apply when a parody is used as a trademark, and this is
exactly what Moschino has done.”
In the EU & UK the law has less of a sense of humour? And under
trademark law there is no defence of parody. The fact that a sign is a parody
is not a specific defence to trade mark infringement under UK law, and a parody of
a trade mark may also be infringing under s 10(3) of the UK Trade Marks Act
1994 if it causes trade mark dilution, or the ‘tarnishment and blurring’ of a
trade mark. This occurs when a similar
sign has taken unfair advantage or caused detriment to a well-known trade mark.
Lady
GaGa v Lady Goo Goo, 2011 EWC
