Skip to main content

OFF-BRAND - How a high-fashion brand and a local ice cream shop have come to blows over intellectual property

OFF-BRAND 

How a high-fashion brand and an ice cream shop have come to blows over intellectual property



In the various industries that are out there, not too many are as different as fashion and ice cream. One is involved in providing happiness, comfort and everything nice in this world and that other provides a sharp reminder that maybe that extra scoop of ice cream was too much. But suffice to say, a rift between the two industries is not something that you would expect to find. 


But as hype culture and the obsessive fandom on the internet have grown, the industries have been growing closer and closer together. But sadly, not in the way you think, we are still a few years off wearable ice cream. Instead, there is now a good chance that your local ice creamery sells merchandise. Less impressive, for sure. But this has become a staple for restaurants with even just a modicum of goodwill attached to their name and why not? If customers are willing to pay an extra $50 so that people will mistake them as an 'off the clock' employee, then go for it. However, it is always important to keep in mind that merely the fact that a store does not typically deal in goods from a particular industry, this does not exempt that store from the standard business conventions of that industry. 


This lesson was learnt recently by Afters Ice Cream, which after launching a line of merchandise was reportedly sued by the high-fashion brand, Off-White. 


Afters Ice Cream advertised a number of different types of clothing that featured the phrase 'Off-Diet' and using images similar to very notable Off-White works. Off-White claims that the merchandise is 'confusingly similar' to Off-White's graphics and registered trademarks. It also stated that "retail fixtures, signage, [and] interior d├ęcor" is intended to "confuse consumers into believing that [its] products are Off-White products and/or that [it or its] business is affiliated with Off-White." 

                                                 

While it is ironic that the Off-White, a company which has been at the other end of numerous copyright infringement claims, even to the extent of a case being called OffWhite Co v Off-White LLC, was so quick to launch their own proceeding, however, the law is pretty straightforward concerning unlicensed reproduction of copyrighted works. 


But it is not all doom and gloom, and there is hope for the plucky ice cream store yet as due to use of humour in the respective shirts, a reproduction of copyrighted works could be okay if it is for the purposes of parody or satire.  


This concept was demonstrated in a recent case in the Ninth Circuit, where the makers of a dog toy that resembled a bottle of Jack Daniels Whiskey were found not to be infringing copyright as the dog toy was found to be humourous and expressive and not a sign of your dog falling off the wagon. 


As for the Off-White matter, we will have to wait and see if this matter progresses to court or if cooler heads prevail and the case is dropped. 

Comments

Popular posts from this blog

Misappropriation of likeness, it's in the game

Misappropriation of likeness, it's in the game With the recent announcement that EA will be venturing back into the world of college sports for one of their upcoming games. It is essential to look at the reasons for its (over a decade-long) hiatus from making college sports games. Several high-profile cases took down a very profitable area of sports gaming almost ten years ago, over a simple but crucial element to the games, the players.  Privacy and personality laws in the United States is an emerging area of law founded on the basis that is based in tort law. It deals with the ideas that a person has rights: 1. To be left alone; 2. To not have public disclosure of private facts; 3. To not be depicted in a false light; and 4. To not have your name and likeness misappropriated.  On these critical tenets, personality laws have become increasingly more prevalent as, due to advances in technologies, it is becoming easier for one's likeness to be copied and distributed.  Th

NEVER Read the Comments!

The Federal Court this week delivered their judgement on  Australian Competition and Consumer Commission v Service Seeking Pty Ltd  [2020] FCA 1040 going all out by handing out whopping fines, legal costs orders and ordering Service Seeking Pty Ltd to establish a, undoubtedly expensive, compliance system to be monitored by the Australian Competition and Consumer Commission (ACCC).  What did they do that was so bad?  According to the Federal Court of Australia, they created a system in which businesses could write their own customer reviews.  With a rating system less defined than what constitutes a 5-star rating in an Uber trip, businesses could write a review, assign a star rating and send it off to their customer for approval. If the customer didn’t respond or even open the email containing the review, then the review was automatically published online after a set period. By estimates of the Court, approximately 80% of the reviews published on the website for the period that this sch

Well, It's About Time

Well, It's About Time How two massive New York news publishers ended up fighting over intellectual property. On 20 November 2020, two of the largest most influential media organisations on the planet locked horns over their rights to the thing which Gollum so eloquently put as, 'the thing that devours all things, or for those that are not as up to date on their  Lord of the Rings  trivia, 'Time'.  As fancy bathrooms are no longer exclusively stacked with copies of the magazine, earlier this year, Time magazine diversified their offering. It unveiled a new short-form online interview series called 'TIME100 Talks' which featured online interviews with journalists, talents and thought leaders. As the videos became popular, Time magazine began to branch out with this brand, establishing Time Talks for dedicated topics like health. Accordingly, they applied to have the trademark 'TIME100 Talks' registered with the United States Patents and Trademarks Office (