Hello Mades32388 ~
What an interesting question!
I've often wondered about this myself, so I decided to tackle your
question and see why and how they can claim they are "designer
inspired", even going so far as to use the trade names or trademarks,
such as "Gucci inspired" or "Kate Spade inspired".
Before I get too deeply into the answer, please notice the Disclaimer
below:
"Answers and comments provided on Google Answers are general
information, and are not intended to substitute for informed
professional ... advice. Google does not endorse, and expressly
disclaims liability for any product, manufacturer, distributor,
service or service provider mentioned or any opinion expressed in
answers or comments."
I am not a licensed attorney, and this should not be taken in any way
as legal advice ... but I was able to locate the relevant Federal
Statutes regarding trademark(s) and trademark infringement.
Being close to the local Law Library, which is open to the public
because it is our taxpayer dollars which fund it, helps ... I could
look it up there.
The answer, in an oversimplified nutshell, seems to be that they can
do it because they clearly state it's not the real thing - but a copy!
Here's the relevant information on how we came to have knockoffs
advertised as "Gucci inspired" or "Vuitton Inspired".
==============================
STATUTORY PROVISIONS INVOLVED
==============================
Section 43(a)(1) of the Lanham Act, 15 U.S.C. § 1125(a)(1) (2000),
provides:
Any person who, on or in connection with any goods or services, or any
container for goods, uses in commerce any word, term, name, symbol, or
device, or any combination thereof, or any false designation of
origin, false or misleading description of fact, or misleading
representation of fact, which –
(A) is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation,
connection, or association of such person with
another person, or as to the origin, sponsorship,
or approval of his or her goods, services, or
commercial activities by another person, or
(B) in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities,
or geographic origin of his or her or another
person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who
believes that he or she is likely to be damaged by
such act."
The statute can be found online here:
- http://www4.law.cornell.edu/uscode/15/1125.html
I also found two cases that helped refine and define the above statute
to get us to where we are today ... actually using the trade name (as
in "Gucci inspired"):
Louis Vuitton S.A. v. Spencer Handbags Corp.,
765 F.2d 966 (2d Cir. 1985)
Cartier, Inc. v. Deziner Wholesale, L.L.C.,
55 U.S.P.Q.2d 1131 (S.D.N.Y. 2000)
There are some other cases, but the two above I found to be indicative
of what I said above and extremely relevant to your question here.
Basically, this seems to mean that so long as they don't present
themselves to actually BE a "Gucci" or "Kate Spade" or "Vuitton", but
freely say they're "inspired by", and don't infringe on the original's
trademark, (like putting Gucci's "G" logo on the bag) it's allowable.
In searching on the Internet, I found a site (Purse Sales) that makes
no bones about about the fact they're not designer bags, and are
clearly "designer inspired"
- http://pursesalecom.host-manager.com/
Notice the announcements that they are not the real thing, "None of
our purses have a designer label! Although our goal is to provide the
finest replicas available, we are not interested in violating
copyright laws. So, if you're looking for an authentic purse, we
recommend that you visit a designer boutique."
- http://pursesalecom.host-manager.com/
While the designers may not like it, the imitators are not using the
designers' trademarks or labels, and clearly stating they aren't the
'real thing'. That apparently keeps them out of hot water.
===================
What You Should Do
===================
You said, "if I wanted to promote that way on my own & not get in
trouble", which does lead me to offer you the following advice to help
keep you out of trouble.
What I've presented above is NOT legal advice, and you should NOT rely
on it as such. I gave you information readily available as a
reference. If you are considering using similar terms, other than a
very vague and general "designer inspired" yourself, you should
consult with an attorney who specializes in trademark and/or
intellectual property law.
Tell him or her exactly what you want to do, and find out what
language you can or cannot use, both in your locale and on the
Internet. Get that advice in a letter, and tuck that letter away in a
safe place. It may cost you a few hundred dollars to do that now, but
it may ultimately save you several thousand dollars later if one of
those designers decides to sue you.
Whether or not the designer wins, he or she will no doubt be in a
better financial position to pursue a lawsuit, figuring you can't
afford to fight it.
If you have documentation that your attorney advised you, and you
relied on and followed that attorney's advice, you will be in a much
better position - "just in case."
Search Terms Used
=================
- gucci inspired
- designer inspired
- trademark infringement
Findlaw search - designer inspired
I also relied on resources available at the University of Arizona Law
Library for information and citations.
Good luck, I hope your "designer inspired" business does well.
Regards,
Serenata |
,
0 Comments
)