Did Moschino’s Debut Fashion collection Dilute McDonald’s Trademark? An EU & US perspective

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

Sources: www.businessoffashion.com/2014/03/moschino-dilute-mcdonalds-trademark.html

http://www.slaughterandmay.com/media/1650943/lady-gaga-v-lady-goo-goo-a-web-based-  trade-mark-clash-applying-interflora.pdf

Trademarks, Copyright and Pop Culture Appropriation During London, Paris and Milan Fashion Week

The Zeitgeist this year, across London, Milan and Paris Fashion week has certainly been pop culture, and if fashion enthusiast were hungry for something different, they got just that this season, with a super-size portion of mass-produced visual commodities of popular culture in a similar way to Andy Warhol’s Campbell's Soup Cans.

Each fashion week was inspired by the supermarket and based, at least in part on the concept of consumerism. In particular, designer Anya Hindmarch’s ‘Counter Culture,’ collection during London Fashion week made use of some familiar household names. Jeremy Scott’s collection for Moschino during Milan fashion week mixed fast food with ‘Fast Fashion,’ and Karl Lagerfeld's collection for Chanel, during Paris Fashion Week, took us to the 'Chanel Supermarket,’ through the Mise-en-scène and set of his fashion show.

Pop art culture, famous for doing away with the traditions of fine art by including imagery from mass culture such as advertising, film and comics; is an art movement that emerged in the mid-1950s in Britain and later in the United States, so the Goss-IPgirl finds it fitting that British bag designer Anya Hindmarch kicked off London Fashion week, with her interpretation of the supermarket, through her collection ‘counter culture.’ Couture.

She explains 'I wanted to treat the everyday ordinary in an extraordinary way.' But she did a little more than just that...

A variety familiar trademarks and images protected by copyright strutted their stuff down the runway, during the bag designers 1970s supermarket sweep. Daz, Frosties, Kellogs, and custard creams, vintage cereal boxes, icon symbols such as Ship matches, to bourbon biscuits were all used. In many cases the fashion designers products were identical to that of products from the original brand owner. For example, the package designs of Kellogg’s Tony the Tiger appeared on a blue background on a tote; Bourbon cookies were transformed into small metallic bags, while Ariel/Daz laundry detergent boxes were turned into clutches. In some cases the starting point for the bags was the shape of the packaging and a tube of McVitie's digestive biscuits was turned into a pencil case-like bag to imitate the shape and packaging of the biscuits; in others cases the logos, colours and symbols on the packaging were employed.

Pop artists are renowned for absorbing and borrowing from popular culture, but is any of this legal? Anya’s designs makes use of the brand names, trademarks and logos of well-known brands in all of her designs, leaving the Goss-IPgirl wondering about trademark and copyright infringement. The Goss-IPgirl is surprised that no one has picked up on this. It may be the case that Anya has a license to do this. But the Goss-IPgirl, does think that this is unlikely, or rather would be extremely pricey.

Trademark, licensing and product placement is big business for companies, one that many guard fiercely. So we wonder what the legal ramifications are of these designs? To mention briefly, there is the issue of trademark infringement and dilution by tarnishment or blurring. There are several criteria which must be reached before one can bring a successful claim for dilution. For example if a trademark's owner can demonstrate that use of the protected Trademark on the designs is going to cause the trademark owners’ mark to lose its distinctiveness as a source indicator, then a dilution claim may kick in.  As with the issue of copyright infringement for the images used and incorporated into the presentation of her designs.

In Milan, the theme of consumption continued also as Jeremy Scott at Moschino opened his first collection as Creative Director of Moschino with references to McDonald's signature logo, the legal implications of which have been addressed here. 

Kyle’s Pop culture for "consumer couture" was celebrated through haute couture gowns made with a fabric inspired by food packaging - from Budweiser to crisps, cereals, jelly bears, baked beans, cheesy bits and other assorted criminal delicacies in Tutti Frutti flavours.  And wedding gowns with prints of nutritional facts labels complete with additives and artificial flavourings, a sort of variation of Schiaparelli's signature newspaper prints. 

Whilst, Chanel over at Paris Fashion Week, built a Fake Supermarket Just to Host his Fashion Show with a ‘set’ that comprised of aisles and tables of every conceivable supermarket good, stamped with interlocking C’s.

Pop Art and fashion are starting to go hand in hand, designers today are generally criticised for stealing from native culture, but rarely criticised for borrowing from popular culture.  This leaves the Goss-IPgirl marinating on a few questions, for which there is no easy answers. Is this type of use free advertising for a company? Is economic or reputational harm caused to a brand through this type of activity? And is borrowing from popular culture legal? From a cultural standpoint, the Goss-IPgirl feels these popular culture references are to be celebrated. Even though there is the need for companies to police and protect their intellectual property perhaps more fitting than suing designers for IP infringement, is the notion that these pop culture references make for good advertising? Which from a brand management perspective may be more important to the profile of these companies than litigating for the unauthorised use of their IP.

Thoughts anyone?