Fashion Apparel Law Blog : Fashion Apparel Law Lawyer & Attorney : Sheppard Mullin Law Firm : Fashion Legal Issues

As the perfume industry has blossomed into a $20 billion dollar a year business, it has encountered a formidable adversary in the form of "smell-alike" fragrances. Such perfumes are unlicensed "copies" of popular fragrances that are meant to appeal to those who wish to possess premium scents without the premium prices. Smell-alikes have achieved a significant percentage of the perfume market because there is a lack of copyright protection concerning fragrances in most countries. To combat this problem, European perfume manufacturers have been battling in court for protection of their scents for the past decade.
 

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Abercrombie & Fitch has taken quick action to protect its signature fragrance "Fierce" against pop diva, Beyonce Knowles' proposed naming of her forthcoming perfume by Coty, Inc. after her alter ego, "Sasha Fierce". According to the complaint for trademark infringement filed by A & F on September 19, 2009, A & F has held a registered trademark for the mark "Fierce" for fragrances since May 2003, and "Fierce" is the scent wafting from all A & F stores as it is dispersed either though a scent machine or by constant spraying of the cologne by A & F employees. The goal being that every A & F garment is infused by the citrus scent.
 

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The Finnish textile and clothing company Marimekko announced recently that it reached a settlement with Dolce & Gabbana S.r.L. and Dolce & Gabbana Industria S.p.A. over the use of its trademarked Unikko floral design pattern.

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In an age of "knock-offs," patent protection is an avenue that can be used by the fashion and apparel industry to protect products.  Every week, the United States Patent and Trademark Office grants dozens of patents on a diverse range of apparel and fashion accessories (for example, shoes, hats, handbags and clothing among other items).  Most of these patents are "design patents."  Under United States Patent Law, there are two broad categories of patents:  "utility patents," which protect the way an invention is used and works, and "design patents," which protect the ornamental appearance of a useful article.

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Piracy is not just a problem on the high seas or the internet: fashion designers have fallen victim, too.  Current copyright laws protect only the artwork of a design, such as labels, logos, prints and embroidery.  Leave off the label or change the logo slightly, and manufacturers and copy-cat designers have free reign to duplicate the cut, shape, style, and silhouette of an item of clothing or an accessory.  This widespread practice of design piracy by popular retailers is legal…for now.

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A recent case involving fragrance manufacturer Davidoff and retailer CVS addressed the importance of quality control procedures related to fragrance product packaging.  In Davidoff v. CVS Corporation, Davidoff, the trademark holder for his line of "Cool Water" fragrances, alleges that CVS violated the Lanham Act by selling counterfeit Cool Water products and by selling decoded gray-market products.  On June 25, 2007, the Southern District of New York granted Davidoff's request for preliminary injunction enjoining CVS from selling any counterfeit and gray-market Davidoff goods, finding that Davidoff had shown a likelihood of success on the merits of his case.

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