Over the past two weeks, multiple media outlets have reported that BCBG Max Azria "won" its lawsuit against Stretta Moda over the alleged infringement of trade-dress rights in BCBG's Hervé Léger "Bandage Dress."  (See, for example, Women's Wear Daily, "BCBG's Group Wins Trademark Suit in L.A." (May 10, 2013).)

Here is a somewhat haphazard sampling of reactions to the Second Circuit's recent decision in Cariou v. Prince.  If any important, notable, and/or especially insightful commentary has been left out -- as I'm absolutely certain is the case -- feel free to suggest additions by e-mailing me at ccolman (at) lawoffashion (dot) com.

Center for Art Law (Ariel Greenberg): Appropriate Standards in Appropriation Art? Cariou v. Prince Decision Garners Relief but Fails to Provide Substantive Guidance

Cariou v. Prince, 11-1197 (2d Cir. Apr. 25, 2013) (opinion)

[Like everything on LAW OF FASHION, this post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities. Any views expressed in this post or at the linked web pages are those of the relevant writer(s) on a particular date, and should not necessarily be attributed to Charles Colman, his law firm, or its agents or clients. Neither the writer of this post nor LAW OF FASHION (or any person or entity associated with it) can or will warrant the thoroughness or accuracy of the content here or at the cited sources.]

Charles E. Colman

"Post-Kirtsaeng, 'Material Differences' Between Copyright and Trademark Law's Treatment of Gray Goods Persist" 

(first published in Law360 on April 4, 2013)

As regular readers of the blog are likely aware, this writer is a zealous advocate of the copyright / trademark misuse doctrines.  (Yes, I will finish one or both of the articles at the above links, once I start my job at NYU Law School this June: see the end of this January 2013 LOF post.)  So while most interested parties were -- quite appropriately -- focusing on the "fair use" analysis in this week's AP v. Meltwater decision, I went straight to page 72 of the opinion to read what Judge Denise Cote had to say about the defendants' invocation of the "copyright misuse" defense...

This case, Macy's v. Strategic Marks, LLC, is worth following in order to gain an understanding of potential pitfalls in "intent-to-use" trademark applications, as well as certain issues surrounding "heritage" brands.  The U.S. District Court for the Northern District of California denied Macy's' motion for partial summary judgment in the case this week, writing:

"... Keeping in mind the Ninth Circuit's instruction that the 'intensely factual nature of trademark disputes' means that summary judgment 'is generally disfavored in the trademark arena,' [argh!] and drawing all inferences in the non-movant Defendant's favor, the Court finds that there are genuine, disputed issues of material fact as to the definitions of Defendant's services.... Specifically, the parties' dispute over the definitions of 'retail' and 'on-line'in Defendant's [Statements of Use submitted to the Trademark Office] could reasonably be resolved in favor of either party.   The Court also finds that there are genuine, disputed issues concerning whether, under the Ninth Circuit's 'totality of circumstances' standard, Defendant's sales- and non-sales-related activities meet the 'use in commerce' requirement for service mark registration...."