Allegations of trademark infringement against celebrity-founded brands are not new. In 2015, resort-wear brand Island Company LLC sued Kendall and Kylie Jenner for use of the phrase “Run Away, Fall in Love, Never Return,” which resembled Island Company’s trademark phrase “Quit Your Job, Buy a Ticket, Get A Tan, Fall In Love, Never Return”.[1] The case was settled in January 2016. In 2021, an Italian tribunal ordered social media influencer Chiara Ferragni to pull her snow boots from her footwear line, finding infringement on Tecnica group’s trademark for the world-renowned Moonboot.[2] Now, Vans, Inc., a sneaker company born out of 1960s California counter-culture, alleges trademark infringement by MSCHF, a Brooklyn art collective endorsed by rapper Tyga.

Continue Reading Fashionable Parody or a Trademark Infringing Wearable Sneaker? The Second Circuit Hears Both Sides.

In a recent Law360 article titled, “Penn State TM Case’s Impact On Merchandising And Beyond,” Crowell attorneys Cheryl Howard and David Ervin discuss the broader industry ramifications of Pennsylvania State University’s lawsuit against Vintage Brand LLC and the favored outcome for Vintage Brand. In the case, Pennsylvania State University filed a lawsuit for trademark infringement against

On November 11, 2021 activewear apparel brand lululemon athletica canada inc. (“lululemon”) sent a cease and desist letter to interactive fitness platform Peloton Interactive, Inc. (“Peloton”), alleging that five of Peloton’s products, including four bras and a pair of leggings, were infringing upon six of lululemon’s design patents and that Peloton’s One Luxe Tight infringed upon lululemon’s Align pant trade dress.

Rather than spinning its wheels, on November 24, 2021, Peloton responded with an action for declaratory judgment against lululemon in the Southern District of New York, seeking (1) a determination that Peloton did not infringe lululemon’s design patents, (2) invalidity of these patents, and (3) a declaration that lululemon does not have trade dress rights in the Align pant and/or that Peloton did not infringe upon this trade dress. Specifically, Peloton argues that there are clear and obvious differences between its products and lululemon’s design patents, the presence of the brands’ trademarks on the products eliminates confusion, and the design patents are anticipated and/or obvious based on prior art. For example, Peloton emphasizes that the back of its Peloton Branded Strappy Bra is cut straight across and has a mesh layer, while the design patents depict a scooped back and no mesh layer, among other differences. Peloton also argues that the asserted Align trade dress does not possess the requisite distinctiveness to be protectable, and even if it does, Pelton’s One Luxe Tight is not likely to cause marketplace confusion.
Continue Reading Peloton and lululemon Yet to Work Things Out, File Cross Lawsuits

On December 18, 2020, the Ninth Circuit Court of Appeals held that “Oh, the Places You’ll Boldly Go!,” a Dr. Seuss and Star Trek mashup illustrated book, is not a fair use exempted from copyright liability. Under the Copyright Act of 1976, the factors courts assess in determining if there is fair use include:

  1. The

UPDATE to our September 2015 post

On March 22, 2017, a 6-2 Supreme Court found Varsity Brands’ designs on cheerleading uniforms to be copyrightable, holding that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.” See Star Athletica, LLC. v. Varsity Brands, Inc., 580 U.S. __ (2017) (No. 15-866), Op. at 1-2.  In doing so, the Court affirmed the Sixth’s Circuit decision below.


Continue Reading A-F-F-I-R-M-E-D! The Supreme Court Upholds Copyright Protection for Cheerleading Uniform Designs