Custom or Counterfeit?

Louis Vuitton, Gucci, Burberry, and many other high-end brands use trademarks and copyrights to add some level of protection to their work. Products integrated with trademarks deter counterfeiting by giving the trademark’s owner – in this case, the high-end company – legal recourse if their brand is infringed. Brands opted for this strategy of repeating logos or patterns to protect the nearly-impossible-to-protect: fashion design. Counterfeit products use the protected logos and patterns to make replicas of the original. This practice infringes on intellectual property rights and can be subject to civil and criminal consequences. Customized and upcycled products as an infringement, however, are not so clear. 

Intellectual property law permits the purchaser of a protected work to resell, destroy, or alter that work, so long as they don’t step on any of the intellectual property owner’s exclusive rights. In simpler terms, someone who purchases an item is now the owner of the item and can use the product the way they want. However, by owning the item, they do not get rights over what is printed on the item, such as the reoccurring logos. 

The brand’s main concern is others making a profit from their protected works, so the legality of altering one’s own property is largely dependent on whether that property is being sold. In the case of “upcycling,” when a product uses recycled materials in the alteration, the legality rests on profit margins. If the seller is making additional profits because of the brand’s logos, as opposed to solely making a profit on their labour and skills, the seller is infringing. For instance, if a seller invests in a shoe for $200, adds name brand logos from recycled materials, then sells the finished product for $300, it is arguable that the price difference is solely because of their skills and effort. However, if the finished product is listed at $600, its more likely that the seller is now attempting to profit from the brand’s name rather than just their work. 

In the case of customization, usually utilizing stencils to create the logos or patterns, it is more synonymous with counterfeit products, even if the underlying product – the product the alterations are being added to – are authentic. Thus, the products will likely be deemed as infringing on the intellectual property owner’s rights. 

Due to these minuscule distinctions, enforcement of intellectual property rights has become increasingly difficult with customized work and up-cycled products. The photos below depict two sneakers: one that would likely be deemed an infringement if sold and one that would not (assuming the profit margin is low). Can you guess which is which? 

Both are authentic Nike Air Force One sneakers, but the one to the left is made from a stenciled Louis Vuitton pattern and listed for sale as a customized design. This would likely infringe on Louis Vuitton’s trademark rights because stenciling on the logos is tantamount to creating a counterfeit product due to the potential confusion to consumers. The shoes to the right were made by removing the original Nike logos and replacing them with cutouts from a Louis Vuitton handbag. If sold for a reasonable amount that does not capitalize on the fact that Louis Vuitton’s logos are being used, the product would likely not be considered an infringement. 

As new forms of fashion and innovation in designs emerge, intellectual property can still offer some protection, even if it is not utilized in every instance. In the real world, trying to find and prevent others from creating works that incorporate a brand’s trademarks or copyrights is extremely difficult, considering the fact that the internet allows for access to hundreds of online shops. Moreover, the laws only affect sellers, so distinguishing between sellers and owners of the infringing property is an added obstacle. 

Nevertheless, if a seller opts to incorporate a brand’s logo or pattern into their own works for sale – even if the product is not infringing – they can expect a cease and desist letter sometime in the near future. 

Check out our fourth post from a series of posts from the 2018 Fashion Blog Competition at Southwestern Law School. This one is by runner-up, Vianca Trani.

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