If you received an invitation to the Penn Intellectual Property Law Group’s annual symposium, which covers Fashion Law this year, you may have felt there was a connection to well-known luxury designer… Louis Vuitton.
The invitation/poster includes a design a parody of the well-known Louis Vuitton pattern put together with © and ™ symbols. In response to the release of the invitation, Louis Vuitton sent a cease and desist letter to the Dean of University of Pennsylvania Law School on February 29, 2012. In it, Louis Vuitton argues the invitation was an “egregious action” that is not only “serious willful infringement” and brand dilution, but also suggests the action is “legal or constitutes ‘fair use’” because it is sanctioned by members of the legal community.
Penn Law School’s Associate General Counsel, Robert Firestone, has already issued a response to the C&D letter, arguing that the invitation does not infringe on Louis Vuitton’s trademark. In it, Firestone raises several arguments, including:
- The invitation does not constitute “serious willful infringement” under the Lanham Act, because the pattern is not substantially similar to Louis Vuitton’s marks and is not being used in “interstate commerce, to identify goods and services” with likelihood of confusion.
- The invitation does not dilute the brand because the group does not use the invitation as a “mark or trade name” as required under 15 U.S.C. 1125(c)(1).
- Even if the brand is diluted, the invitation falls under the “noncommercial use” exception under 15 U.S.C. 1125(c)(3)(C) because it is used by a law student group at a non-profit university.
- Finally, the invitation is a “fair use” under 15 U.S.C.(c)(3)(A) and a “parody” under 15 U.S.C.(c)(3)(A)(ii).
While the law is likely on Penn Law School’s side, who also cited Louis Vuitton v. Haute Diggity Dog (507 F.3d 252) as an example of a successful trademark parody that would not cause confusion, the dispute raises some interesting issues about trademark protection for popular luxury goods and fashion brands in the United States. Maybe protecting these ”parodies” still harms the luxury goods and fashion designers without “confusion.” Maybe potential infringement of fashion trademarks is acceptable if it is derived from a more legitimate source, like a professional artist or law school. We all know that Louis Vuitton is uniquely aggressive in the policing of its trademarks, but then again, we all know exactly what brand this invitation is a parody of… isn’t that somewhat confusing?
I love a parody as much as the next witty law student, but perhaps fashion designers with established marks deserve some additional protection. Perhaps that issue will be addressed by the author of the LVMH C&D letter, since the reply from Penn included an invitation for him to attend the symposium. Regardless, there is likely to be a lot of lively discussion at this symposium on March 20th. What do you think? For other opinions and links to the letters, check out these blog posts: Excesscopyright and The Volokh Conspiracy.