Fashion and Trademark - a panel at Cardozo

By Jason Wojciechowski on February 10, 2006 at 10:20 PM

On Thursday night, some friends and I went to a panel at Cardozo on Trademark in Fashion. Knowing that I'm one of those free culture types, it should have been predicted that the panelists would piss me off. All four were industry insiders, lawyers either for firms that do IP work for the big fashion houses, or for the big houses themselves. Predictably, then, the panelists were proponents of strong IP protection and vigorously going after infringers of their "rights."

You'll never hear an argument out of me that counterfeiting is good or right. I don't disagree that companies like Chanel should take steps to shut down people who are producing copies of their bags and selling them on Canal Street. That said, the blind adherence to a strong IP-protection regime and the justifications for that regime were a little ridiculous. The panel made mention of the reports that terrorist organizations are being linked to profits from counterfeiting of all types, clothing included. I'll let the jury still be out on that, because the links sound a little sketchy, and I thought we'd learned our lesson about taking action against terrorism based on sparse evidence.

I was also amused by the revelation that counterfeiting clothes has really taken off ever since the companies moved their manufacturing to Asia. So now the companies are pressuring countries like China to create more stringent IP protection. My reaction is that these companies are just being whiny bitches. They made the choice to take their manufacturing to Asia, and they have to face the consequences of that. Quit making it a moral trip, quit pressuring other sovereigns to change their laws, and just deal with it. If you're losing that much money, then it'll make economic sense to bring the manufacturing back to the U.S. If counterfeiting is so awful, then make your Murakami bags in Cleveland.

Even better, perhaps, was the panel struggling to come up with other ways in which we harm ourselves when we buy counterfeit goods. The best they could come up with were, "A lot of the counterfeit sunglasses don't actually have real UV protection," and, "If you buy fake perfume, you could get an allergic reaction." Yeah? Well, I get a reaction to my very-much not-fake deoderant (which is why I use Tom's of Maine now), and I'm sure I could easily get a reaction from a real bottle of Chanel No. 5 just as much as I could from a fake one.

The real problem I had with the panel, though, was not on the counterfeiting front. As I said, there's no justification for counterfeiting. Really, it was just a general unwillingness to address the other side of the debate. Scratch that. Call it a general unwillingness to even acknowledge that there is a debate. I suppose that's not why they were there, but I don't know if they recognized the inherent contradiction in some of what they were saying about trademark.

For instance, some of their talk was aimed at giving advice to up-and-coming designers and businesspeople (there were a number of New School and FIT students in the audience for whom this was more appropriate than the future-lawyers) that they aggressively pursue trademark, patent, and copyright for their work. At the same time, they explain how they, in their capacities representing the established companies, go very aggressively after anyone who might be infringing on their copyright or diluting their trademark. There doesn't seem to be a recognition of the need for innovators (of all types) to innovate without fear that some multinational behemoth is going to come along and shut them down with a multi-million dollar lawsuit because of some minor, accidental infringement.

This is what drives my reluctance to even bother with IP in law school.

On a totally unrelated note, I'm right now watching Eugene Mirman, Hampshire College grad and comedian, working as a correspondent on Cheap Seats. I loved that show before, but I love it so much more now. Hampshire love, baby!