As the world gets smaller, the search for the next new trend becomes more difficult, especially for those in businesses that demand seasonal adjustments to their product offerings. It is no surprise then that apparel, luxury goods, and similar companies spend quite a bit of their version of research and development time scouring the world for design inspiration. In short, one of the effects of globalization has been the development of what can seem a mad rush to create, market, and distribute unique products to satisfy the burgeoning global appetite for what is “on trend.” From an IP perspective, however, the speed at which the market moves puts a lot of stress on the IP legal fabric, which often struggles to keep up with the rapid pace of new design and the inevitable copying that occurs.
A major change and challenge for brand owners in the apparel and luxury-good markets is the quality of infringing products that are both sourced and distributed globally today (and these issues will only become more relevant, with our president tweeting in the early morning hours about his attention to trade). Just as challenging is the speed with which that very same copying and distribution process occurs. In contrast, legal processes can move quite slowly when it comes to enforcing the IP rights of brand owners and designers. This incongruity explains the increasing tendency of brand owners (as touched on in my column of a few weeks ago) to turn to extra-legal fora like social media in order to assert their rights in some way. Similarly, the importance of policing efforts performed in conjunction with global ecommerce platforms like Alibaba and Amazon has risen in this age of “fast fashion” and higher-quality knockoffs.
While enforcement may always be a challenge for brand owners, the search for design inspiration is not without its pitfalls as well. Perhaps ironically, we live in an age where even the most prestigious luxury brands are forced to invest considerable sums towards IP enforcement, while still facing criticism for exploiting the IP rights of others. While we have touched on the dangers of a brand owner being labeled a trademark bully, for example, these brands often face the threat of being labeled as IP colonialists as well — a direct result not of their enforcement efforts, but rather the extreme measures they must take to uncover the next trend. While the pursuit of such inspiration can result in a season’s (and sometimes more) worth of profitable sales, the negative impacts of being viewed as a cultural exploiter can’t be ignored — particularly for companies so dependent on maintaining a public perception synonymous with creativity, luxury, and the good life. Nothing cheapens that aura like being called out for ripping off the less fortunate.
Here are some examples, starting with one of the world’s most valuable brand names. Louis Vuitton, in both 2012 and with respect to its current 2017 collection, has “met with criticism from South Africans for allegedly turning the culturally significant Basotho blanket into a fashion trend for men,” as noted by The Fashion Law. Criticism aside, this cultural appropriation is both profitable and validating from a brand value perspective for Louis Vuitton, as the company is able to sell a $2500+ version of a blanket that normally would be available from traditional weavers for under $100. At the same time that Louis Vuitton is accused of “appropriating a culture” without giving proper recognition to the Basotho origins of the design, the Louis Vuitton versions of the blanket have sold out in the company’s South African outposts. Pretty good illustration of the value of a brand name synonymous with luxury and exclusivity.
From the opposite side, the Maasai tribe in Tanzania, sick of the widespread use of its name and designs by companies such as Calvin Klein, Louis Vuitton (yes them again), and Jaguar Land Rover, has decided to seek the credit it feels it deserves from the alleged thousands of companies that have benefited from Maasai-branded products. To that end, the tribe has taken steps to raise its IP enforcement awareness, with the USPTO even issuing a grant to help their efforts. In fact, these steps have already led to some of the previous IP “colonialists” to announce that they would no longer use the Maasai name. At the same time, there remains an avenue for a larger brand to garner significant goodwill by becoming a Maasai IP licensee, as Jaguar Land Rover is apparently in discussions regarding.
Ultimately, it is clear that the same globalization forces that have contributed to more widespread infringement have also created conditions where even under-resourced African tribes can start the process towards becoming IP owners and licensors. Part of the opportunity for the latter lies in the goodwill that responsible companies can garner by showing respect for the IP rights of formerly exploited entities. Hopefully, those companies will be rewarded by customers, if only to offset the costs they themselves incur in going after infringers.
At the same time, bad actors, such as those companies (regardless of their own size or prestige) eager to act as IP colonizers in the pursuit of short-term financial gain must be brought to account for such behavior. Yes, larger brand owners often bear the heavy burden of policing infringers. Those efforts are important, and the benefits of robust infringement policing and deterrence often redound to smaller brand owners as well. But a license to police is not a license to exploit the cultural heritage of others either. Hopefully, when it comes to IP rights, to the responsible and considerate will go the spoils.
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Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.