I previously spoke of my admiration for Louis Vuitton’s constant policing* of its trademark. Policing trademarks helps ensure the integrity of their mark and gives me continued hope for a career in fashion law). Well, I am happy to report that LV’s lawyers are up to their complaining protecting again.
The University of Pennsylvania Law School’s Intellectual Property Group hosts an annual symposium. This year, they developed a flyer reminiscent of LV’s Toile Monogram. Here is the poster for the fashion law symposium:
Seems innocent enough right? Maybe even flattering?
…well, not to this fashion house.
Louis Vuitton goes against U Penn Law School
Louis Vuitton’s lawyers* alleged that
“this egregious action is not only a serious willful infringement and knowingly dilutes the LV Trademarks, but also may mislead others into thinking that this type of unlawful activity is somehow “legal” or constitutes “fair use” because the Penn Intellectual Property Group is sponsoring a seminar on fashion law and “must be experts.” People seeing the invitation/poster may believe that Louis Vuitton either sponsored the seminar or was otherwise involved, and approved the misuse of its trademarks in this manner.”
LV goes on to mention how they do support education to the public on intellectual property. LV is even a corporate sponsor of Fordham Law’s Fashion Law Institute.
While I commend LV not being hesitant to send out a cease and desist letter, I do not agree with the allegations.
- I don’t think a judge would find trademark infringement here because although I think the school was making a play off of LV because the Toile Monogram is so famous, showing a parody after the fact/making a social comment is fine after the fact as long as you can verbalize the parody
- Penn was not using the copied work as a source identifier
- I believe there is a Circuit split on whether likelihood of confusion is a question of fact (clearly erroneous review) or of law (de novo review)
- The IP Group shows a list of their sponsors and Louis Vuitton is not on there so I don’t think they could get a survey of people who would honestly claim they think otherwise
- Here is a test for dilution by blurring: degree of similarity, degree of distinctiveness, intent to create association, actual association
- UPenn claims the poster is a parody, which is an exception to dilution
- Where a parody is so similar to the famous mark that it could be construed as actual use of the famous mark itself, it could be dilutive
- U Penn cannot claim the non-commercial use exception since they offered CLE credit, making a commercial use link, but the parody exception may work for them
- Parody is relevant to the overall question of whether the use is likely to impair the famous mark’s distinctiveness. Here it clearly seems the parody would not impair LV
- Dilution does not require a showing of consumer confusion and so lacks built-in 1st Amendment safeguards that infringement claims have
Given that the audience of this poster will be in attendance of an annual intellectual property symposium, I doubt the poster created confusion or dilution. I think the poster should ultimately be allowed for this fashion law focused law school symposium.
You can read the entire cease and desist letter (posted on U Penn’s website) here.
Check out U Penn’s reply (also from U Penn’s website) here.
* Policing a trademark means actively protecting against unauthorized use of the mark.