My Other Bag is Not a Louis Vuitton

Louis Vuitton (LV) is known for its vigorous protection of the trademarks of its luxury brands but clearly they missed the mark on picking a fight against ‘My Other Bag’ (MOB) in the US District Court of the Southern District of New York (Louis Vuitton Malletier, S.A. v. My Other Bag, Inc, No. 16-241-cv (2^nd Cir. Dec 22, 2016).  The Christmas present they were expecting, and usually get awarded from the Courts, didn’t eventuate…hold your breath people…Louis Vuitton lost!

In fact, the Second Circuit affirmed the earlier decision of the District Court that MOB had not in fact breached the trademarks of the French design house nor had the bag maker diluted the brand’s reputation by blurring.  To the contrary, the Court found that MOB had adequately discharged its onus of establishing the fair use defence, by way of parody, and in fact, if anything, the distinctiveness of the Louis Vuitton marks were likely to have been reinforced and enhanced.

The MOB totes are the invention of Tara Martin who cleverly featured cartoon imagery of high end bags on the one side of a canvas tote while displaying the slogan “My Other Bag” on the other.  The totes retailed for in the vicinity of $30 while we all know that an LV acquisition is likely to set you back a $1000 or so.

LV failed on each of its arguments and in arriving at its decision, that there had been no trademark infringement, the Court observed that:

1. there were obvious differences in the manner in which MOB mimicked the LV trademark;
2. an LV high end luxury handbag and a MOB tote had a lack of market proximity; and
3. LV had failed to produce any convincing evidence that consumers would be confused by the two bag manufacturers.

With respect to the LV argument that the MOB bags diluted its trademarks, the Second Circuit held that the MOB totes were a parody bringing them within the “fair use” exclusion from liability for trademark infringement.  In their decision the Court, explained that a parody must simultaneously convey two messages – first, that it is the original but also that it is not the original and it is instead a parody.  Applied to the facts at hand the Court concluded that MOB mimicked the LV brand but also conveyed a distinguishable inexpensive look with its parodic slogan “My Other Bag.”  The gentleness of the parody did not preclude it from acting as such as the parody clearly indicated to the ordinary observer that MOB is not connected in any way to the owner of the trademark.

The Court indicated that where the parody was the very point of the product the defence was likely to be upheld.  Further, the allegation by LV that the totes actually infringed the copyrighted designs of the design house was rejected as the Court found that the cartoon variations of the bags were a “new expression and message” constituting transformative and not infringing use.  The critical factor being that MOB was not using the LV trademark to increase the sales of the MOB totes by inducing consumers to mistakenly believe that the totes are in fact LV bags or somehow endorsed by the fashion house.

Unfortunately for LV, the free advertising and publicity that MOB has received by the failed LV suit may have had the unintended consequence of generating sales for the MOB totes.

Johanna Johnson – Another Aussie Designer Feels the Pinch

In an all too familiar tale another Aussie designer has entered into liquidation for allegedly failing to pay tax bills and employee superannuation.  Johanna Johnston once dressed Hollywood royalty and had her gowns on the backs of Christina Hendricks, Madonna and Chrissie Teigan at the height of her ‘it girl designer’ status.

Maria Menounos attending the 2014 Oscars

A Johanna Johnson creation for Christina Hendricks at the 2011 Emmys.

And then somehow it all went wrong to the tune of an alleged $AUD1.1million.  But even more interestingly Ms Johnson does not seem to understand the whole concept of liquidation and in an extraordinary move has registered a new company using an almost identical trading name ‘Johanna Johnson the Label’ to recommence business only days after the liquidators were appointed.  Ms Johnson has been been using social media to make promises to women who paid ‘up front’ for frocks – predominantly in the bridal sphere – that such frocks will be delivered before their big days. However, she does seem to have missed the memo that her prior business and any of its assets including fabrics, patterns and equipment, are now under the control of the company’s liquidators.  In simple terms, the money paid for the gowns is money of the old company to be distributed evenly amongst all creditors including the Australian Taxation Office and former employees of the company.

The idea that the new company would deliver dresses can only be premised on Ms Johnson causing her new business to start and construct all dresses for free.  Now that brings a tricky little quandary for the directors of the new company, who it should be noted are not Ms Johnson but rather her sister and husband, as to how constructing a number of dresses for clients of another corporate entity for free could in any way be in the interests of the new company.  But that is possibly an issue lost on our new directors who are clearly stepping in to help Ms Johnson out of a tight spot.  But an even greater question needs to be asked of Ms Johnson, if she is able to effectively start afresh with the new company how is it that she is unable to pay the debts that caused Justice Brereton of the Supreme Court of New South Wales to order that the company be placed into liquidation?

In the ordinary course of a winding up the liquidators will be at pains to ensure that Ms Johnson has done nothing to prejudice creditors and will attempt to get the best return for creditors as possible.  However, that is little solace for the brides to be that may be sans dress for their great day.

 

New York Fashion Models – Know Your Rights

Are you a fashion model that has worked or continues to work for any of the following modeling agencies in New York city or around the world:

Wilhelmina Models from 2001; Next Management from 2000; Major Model Management from 2005; Elite from 1998; MC2 Miami & MC2 Models from 2005 and Click from 2006?

Is it possible that you:

1. were classified as an independent contractor but were really an employee;
2. did not receive compensation for one or more uses and/or reuses of images created as part of your relationship with the agency;
3. attended a casting, go-see, meeting, check-in, test shoot or performed any uncompensated work or service at the direction your agency;
4. received a pay check from your agency.

If yes to any or all of the above then you may be a member of the ‘Class’ of fashion models that have an interest in the law suit that has been brought by 9 former fashion models against the above agencies, on their own behalf and on behalf all models that fall within the ‘Class.’

The law suit is currently being fought in the Supreme Court of the State of New York.If the models are successful with their law suit, on behalf of themselves and the ‘Class,’ they seek the following from the agencies:

1. unpaid wages on their own behalf and on behalf of those members of the class;
2. minimum wages for periods in which the agencies delayed wage payments;
3. compensation for unlawful deductions from wages;
4. a court order requiring the agencies to provide models with accurate payroll records, wage statements and a full explanation of how wages and deductions are calculated;
5. interest of outstanding money.

If you think that you are part of the above Class and want to find out more about your rights OR if you are not part of the above Class but have experienced similar issues with your agency please email lee.pascoe@liberolegal.com.au for a no cost, confidential chat about your rights and potential remedies.

The Model Wars heat up in NYC

What do you get when you take 9 retired fashion models, 8 of New York city’s biggest modeling agencies and the world’s largest litigation firm…a New York Supreme Court shit fight that, if successful in favour of our clothes horses, is likely to change the face of the modelling industry in the States and around the world…forever!

Melissa Baker a former Sports Illustrated model alleges that Click Model Management Inc managed her life even to the point of asking her to dump her military boyfriend in favour of an A list celebrity or sports star.

Alex Shanklin a former Wilhelmina and Elite model who left the industry alleging that both agencies repeatedly failed to remit payment for outstanding wages.

Earlier this year Quinn Emanuel Urquhart & Sullivan filed a Third Amended Class Action Complaint, on behalf of our lovelies, against the agencies who are said to have deprived the lovelies of wages, overcharged expenses, forced their way into the lives of the lovelies and withheld work if questions were asked.  All feasible allegations if you know anyone in the closed shop industry of high fashion modeling but what is extraordinary is we finally have a group of lovelies ballsy enough to speak out on behalf of the others that are still slogging it out under the flash bulbs for paltry pay and sub par conditions.

A critical argument advanced by Quinn Emanuel, who as an aside are well renowned for knowing their business, is that these lovelies were actually employees rather than the independent contractors that they were characterised as.  Which as any savvy lawyer knows is a segway into all sorts of conditions that will on no view of the world have been offered to these or an of New York’s lovelies.  We’re talking minimum wage, regular pay checks, accountable expenses etc.  Again, the employee argument is highly feasible based on the amount of control the respective agencies imposed on the day to day work environment and conditions of the lovelies.  So modeling agencies you may be in  ‘all sorts’ here, one would imagine.

Some of the more extraordinary, but all to possible, allegations levelled at the agencies were that their lovelies were instructed in their clothing and personal grooming choices, accommodation and boyfriends and were not permitted to have anything to do with their bookings, contractual negotiations or recovery of earnings.  But the kicker is that with the instruction on all things mother agency came the costs!  Allegedly the “we want you to wear your hair like this so you represent this agency well”…was accompanied by “we have booked an appointment for you at this stylist”…oh and if you can’t afford it don’t worry it will come out of your wages and until you pay the principal loan we’ll charge you interest on the outstanding money”.  And no, no my lovely…no questions will be asked if you want to continue getting modeling work to pay off those loans.

If the allegations can be established, and if anyone can run a smooth case against the mother ships, it’s Quinn Emanuel, then be prepared for a spate of changes in the running of things in the fashion industry.  For a simple start the lovelies are asking, on behalf of all models forming part of the class, for a court order that the agencies provide them with a wages statement with a full explanation for the calculation of wages and deductions.  That alone could put agencies under a boat load of pressure!

Stay tuned for further updates as Shanklin & Ors v Wilhelmina Models Inc & Ors 653702/2013 moves through the hallowed halls of the Supreme Court of New York.

 

Ginta Lapina – The Legal Saga Continues…

Source – http://www.fashioninspo.com

In an earlier blog post we reported that top fashion model Ginta Lapina was taking the unusual step of issuing a suit against Schwarzkopf and her agency Women Management in relation to allegations that the two entities mislead her into doing a photo shoot, improperly paid her and used her images without consent.

You will also recall that Lapina had only last year signed an exclusive management deal with Women Management, which would take their relationship through to some time in 2015.

Well unsurprisingly, when one is suing their agency, Lapina has jumped ship and is now represented by DNA Model Management.  Although DNA’s lawyer has stated in the New York Daily News that “any relationship between Miss Lapina and Women Management was over before she contacted DNA and discussed representation.”

Women Management has immediately hit Lapina with its own suit alleging that she fabricated the issues in relation to Schwarkzkopf as an excuse to break her contract. We say “big call” by Women Managment but let us continue…

Our leggy Latvian is now being sued by Women Management who claim that they made her a star and her repayment is a defection to a new agency.  The New York Daily News has reported that Women Management is claiming that the 25 year old is only where she is today in the modelling game because of the work that her agency has put in over the last 6 years to promote her and build her career.

One would assume that Lapina may also have something to do with where she is today considering that she came to New York in 2005 as a 16 year old, signed to an agency that was not Women Management, and worked for some 3 years prior to signing up to her former agency in 2008.

But it seems that this has gone unnoticed by Women Management who has taken its legal business to the Manhattan Supreme Court, (Lapinta’s suit sits in the Federal Court) where it is claimed that “Lapina and DNA maliciously acted in bad faith to manufacture a false pretext for Lapina to breach” her contract by having her file the federal lawsuit.  Being in the litigation game for some time I can tell you that there are easier ways to break a contract than issuing proceedings in a superior court…but I digress.

Women Management want Lapina to serve out the remaining 16 months of her contract and in effect appear to be seeking orders for specific performance. Generally speaking Courts are reluctant to force parties to remain in a contractual relationship if the matter can be settled with the provision of adequate damages so in my opinion Women is on a losing streak with the specific performance order but all will be revealed as we move forward on this one.

Unsurprisingly, the allegations have been denied by DNA.

Interestingly, it has been reported in the New York Daily News that in Women’s court papers it claims that “Lapina is a unique and irreplaceable talent.” Strategically this may just be a faux pais on Women’s behalf. Let’s take a moment to think laterally here. If Lapina is successful against Women Management and/or Schwarzkopf she will also have to prove her damages. It could not hurt her at all that Women is claiming that she is such a unique and irreplaceable talent. If anything one would think that this would assist her claim that Schwarzkopf is not a product that a “unique and irreplaceable talent” would promote for a paltry payment, by super model standards, of $19,700. But hey, that’s just common sense talking here.

Women may also be stepping into dangerous territory with this one insofar as they appear to be trying to make an example out of Lapina. It has been reported in New York Daily News that Women claims in its Court documents that “it will suffer “irreparable” financial harm “if top models such as Lapina are permitted to freely breach their fixed term contracts.”

This kind of strategic play has never turned out well for anyone.

First, notwithstanding what the ‘black letter’ law says a Judge is unlikely to take great pity on an agency that turns over millions a year on the back of young girls most of whom do not have legal representation when entering into contracts and many of whom that have English as a second language. Arguably, Women Management got its 6 years worth and we should all move on maybe with some compensation payable by Lapina’s new agency. Second, the sisters (and brothers) in the modelling world are unlikely to see this as a vote of confidence in their own agencies. The mentality of “if it can happen to Ginta it can happen to me” is likely to creep in faster than you can say Kale and Goji Berries and models will start dotting their “I’s” and crossing their “t’s” with greater vigilance when dealing with their agencies and clients.

All we can say is watch this space as this saga is unlikely to go away quietly.