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Avid followers of fashion might be confused by the suit. Aren't there dozens of stores whose sole purpose is to translate runway fashion into affordable clothes? Stores like Zara, H&M, Topshop and Forever 21 are in business solely to bring the trends found on the runways of Paris, New York and Milan to the streets of San Francisco, Dallas, Madrid, Lyon. Where's the problem?
The problem, as the plaintiffs see it, is that the design of the Madden copy is so exact, down the the placement of its toy colored straps, that original designer fears actual confusion between the two. One could apply what Harvard Law professor, Jeannie Suk, deems "the squint test." Suk says that in a side by side comparison of the original and the knock-off, if you have to squint to tell the real from the fake, there may be infringement. Madden's shoes don't really seem to pass the squint test, take a look at: http://www.stylelist.com/2009/12/18/balenciaga-sues-steve-madden-over-lego-heels/.
Fashion fiends may then ask, what about dress company A.B.S. by Allen B. Schwartz, whose entire shtick is copying designer dresses worn on the red carpet by Ann Hathaway, Angelina Jolie, Halle Barry -- take your pick of fashion icons. Schwartz has been seen on Entertainment Tonight and like shows showing of his "interpretation" of the red carpet designs the day after the awards shows. Why hasn't he been sued out of business? A quick web search turns up only one reference to a suit against A.B.S., by the designers of the exclusive gothic tinged line, Libertine. That suit settled in 2007 before reaching the courtroom.
The clothing design copyright infringement question has been put before Congress and is still under consideration. At this point, U.S. copyright law the does not extend the same type of protections to "useful" items such as Lego-themed heels as it does to works such as books, movies and plays. One more difficulty plaintiff Balenciaga may find in its suit comes with the cause of action for damages stemming from its loss of sales to Madden. It seems highly unlikely that any shoe fanatic who could afford the $4,175 price tag of the exclusive French-made original, would decide to pony up just the $99.95 and take home the Madden from Nordstrom Rack instead. Bonne chance, Balenciaga!
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