Fashion Law

Are Cultural Customs Acceptable Counterfeits?

Manhattan shop worker arrested on counterfeiting charges for selling cardboard and paper (read obviously fake) luxury replicas. These replicas were targeted to dead people.
Fook On Sing, A Little Shop of Fake Funeral Joss Paper Crafts

Fook On Sing, the store where the alleged counterfeit goods were/are sold

The store is located in an area of Chinatown known as Funeral Row. It sells traditional objects of mourning that include copies of luxury goods. Each item, known as joss paper crafts, is meant to be burned as gifts to the newly deceased or as tributes to ancestors. This practice is an Asian tradition. The idea is that the joss paper items represent items the deceased will receive in the afterlife.

Should joss paper items be considered as infringements?

For a trademark infringement claim, a trademark owner would have to prove that the goods are likely to cause confusion in the minds of consumers about the source or sponsorship of the goods or services offered.

It is unlikely that a court would find joss paper crafts to be trademark infringements.

The Asian market is a huge (and growing) player in the luxury goods business. Instead of going against joss paper crafts that would be infringing if they were actually usable and not meant to be destroyed, fashion houses should actually consider creating their own joss paper crafts.

Although these goods seem innocent enough since they do not take the place of existing products (since representative paper goods are what is meant to be burned as gifts for the afterlife), they have potential for danger. For example, people can get so good at paper crafts that they market them as high quality joss paper funeral items but the goods are actually low quality counterfeits.

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