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Blogs from the Stylist.com to Business Insider are a-buzz this week with the news that Italian fashion house Fendi has won a major award against down-market discount retailer Burlington Coat Factory for their breach of a 20+ year old injunction for trademark infringement. The cost: $4.7 million. That will buy a few Baguette bags.
The original order prohibiting Burlington from selling fake Fendi's was signed in 1987. (Fun fact: Business Insider reports that Justice Sonja Sotomayor was a part of the team that put the injunction in place.) A renewal of hostilities occurred in 2004, with a second infringement suit. In 2007, a judge found Burlington in contempt of the original '87 injunction. Finally, last may, New York Judge Michael Dolinger recommended damages be set at more than $3 million, $2.5 million in lost profits and about $500,000 in legal fees. Yesterday, Judge Julian Sand awarded treble damages (three times the proven damages, allowed under trademark law for willful violations) to Fendi, finding that Burlington had knowingly violated the original injunction.
This case is a slightly different version of the many current trademark infringement cases in the news of late. Unlike the Balenciaga v. Steve Madden case discussed in a post on FindLaw's Law and Daily Life Blog, the ongoing North Face v. South Butt suit followed on FindLaw's Legally Weird Blog, or even the recent Marc Jacobs suit against designer Christian Audigier (of Ed Hardy fame) cited by Stylist, the Fendi suit is a counterfeit goods case.
Burlington has been found liable for selling goods purporting to be made by Fendi that of course, were not. Sidebar: why would any fashionista with her skinny jeans on straight would truly think she could scoop up a Fendi bag at a coat outlet? The other cases discussed are a matter of similar design, sometimes intentional, sometimes not. In those types of cases, the confusion of the consumer over who designed and produced the goods can be an uncertain area that the parties and the law must explore, and the trademark protection for such design overlap is unclear.
This is why the Council of Fashion Designers of America (CFDA) has been pushing Congress for more intellectual property protection for fashion design for years now. The European Union has set some additional protections available to its €22 billion business of fashion design. When will the U.S. follow (custom made) suit?
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