WOW! Did the Kardashians Actually Make the Right Business Move??

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I have to say the answer is surprisingly yes, being that the final, long awaited settlement was finally filed regarding the last of the Kardashians’ cosmetics brand’s legal disputes. The Kardashians’ cosmetics brand, originally “KHROMA”, now “KARDASHIAN BEAUTY”, has certainly faced its fair share of legal challenges since launching in November 2012, with two separate lawsuits quickly initiated. Fashion Nexus has been there every step of the way with any major updates such as the grant of a preliminary injunction and then with the Kardashians’ brand’s name change for their mark.

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The first legal challenge to the KHROMA mark came from CHROMA, a Beverly Hills make-up studio. A settlement for that action was filed on November 14th, 2013. I was surprised this suit was settled first being that an injunction was not issued regarding this suit. But finally, the second settlement came in on April 18th, which was between Boldface (the company who holds the rights to the Kardashians’ name and likenesses) and KROMA, the cosmetics line/brand owned by Lee Tillett. The Notice of Settlement states that it would be for the entire action and provided for “certain actions to be taken over a period of time.” The parties requested a stay for the entire case until February 15, 2015, at which point a stipulation for dismissal would be filed.

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The court questioned nothing except for why it would take so long to file a stipulation for dismissal. The court found a stay to be unnecessary “given the Court retains jurisdiction to enforce the settlement.” The parties were ordered to file a stipulation for dismissal no later than May 23rd, which was later extended to June 2nd.

The Daily Mail reported that the sisters attempted to distance themselves from this case, “asking the judge to dismiss them from the suit as they claimed they were not involved in the running of Boldface.” I am unable to find any such request in the case’s docket history. But the thought isn’t so shocking when you consider just how many losses the Kardashians experienced during the pendency of this case.

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A preliminary injunction was granted in early 2013. The Kardashian team then sought a stay with the 9th Circuit Court of Appeals in order to reverse the grant of injunctive relief, but on May 31, 2013 the motion was denied. The Court of Appeals agreed with the lower district court holding that the 4-factor test for a preliminary injunction was satisfied – (1) a likelihood of success on the merits; (2) irreparable harm to Tillett; (3) a balance of equities were not in favor of Boldface; and (4) no best interest of the public.

A permanent injunction was then granted on August 13, 2013. This grant was probably the clearest sign that Tillett was likely to win her case. In fact, it was specifically one of the factors she had to prove in order to receive injunctive relief! But rather than settle, the Kardashians moved for summary judgment on November 26th, 2013. But I’m guessing after yet another strike against Boldface came to surface that finally the right move to settle came to fruition.

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On November 27th, 2013, Tillett and Boldface filed a “Report to Court”, which was made to bring to the court’s attention inadvertent violations of the injunction. Boldface’s report attempted to explain how over 3000 boxes of KHROMA branded products were shipped after the effective date of the injunction. On March 20th, 2014, the Court held Boldface in civil contempt for “failure to comply with the injunction” with regard to certain shipments. I’m sure if the Kardashians wished to distance themselves, it was likely regarding this huge oversight! But as far as being dismissed from the case entirely, this was highly unlikely since the question was never about how Boldface ran their business, but about trademark infringement over the use of the KHROMA mark.

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While it’s likely the Kardashians were not directly involved with the violation to the injunction, it would not be enough to dismiss them from this case. They made the decision to use this mark and embark upon this long battle with Tillett. The decision to fight versus settling occurred for over 2 years. It’s very unlikely the Kardashians or their legal team didn’t have a say-so with regard to the legal moves for this case. In fact, I’m almost 100% positive their agreement with Boldface would have established their retaining of rights when it came to issues of infringement or other legal disputes. This is quite standard for licensing agreements.

I will go ahead and end on that note. It appears this case is finally coming to a close so I guess so too should my rant/soapbox! I’ve always called that a settlement should happen here and I’m happy to report now that it has!

This Thing Called Fashion Law….

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I am in law school so of course I am asked all the time, “What type of law do you want to practice?” When I first moved to NY, I said entertainment law. But I often explained it as a multidisciplinary practice or a variety of different types of law that encompass it. I now say I want to work in fashion and with fashion law. I get the same puzzled looks and further line of questioning — “What is Fashion Law?”

I still explain the multidisciplinary concept. Fashion law encompasses contracts, corporations and intellectual property (copyright, trademark, design patents, etc.). I also quickly mention the field is still evolving. The east coast, right here in NYC, already started to help develop this field and the study of it. But the west coast has also found its niche as well. I think with this trend of fashion law programs at law schools, the field will develop a clearer vision and maybe, just maybe, the confusion will start to clear up.

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Fordham University School of Law launched the Fashion Law Institute, several years back and is the world’s first center dedicated to law and the business of fashion. The Institute offers training for the fashion lawyers and designers of the future, provides legal services for design students and professionals, and makes available information and assistance on issues facing the fashion industry. This program was founded by fashion law pioneer Susan Scafidi; she literally created the first fashion law course!

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Most law schools are still in the earliest of stages when it comes to fashion law and that is just offering the course — Fashion Law. But when you are at a school that offers half a dozen fashion law-related courses, it makes the study, the practicality and really the field much more clearer; you can better understand and grasp what fashion law is. The courses offered are — Fashion Law; Fashion Law & Finance;  Fashion Ethics, Sustainability, & Development; Fashion Modeling Law; a Fashion Law Practicum; & Fashion Retail Law. So right there you can see what else is encompassed by fashion law — ethics, business development, finance, retail, modeling, etc.

But one school on the map was hardly getting the message across. The west coast, Los Angeles to be specific, is now staking a claim to the development of fashion law. Loyola Law School, just this week, officially approved the launch of the school’s fashion law institute at its LA campus. LA also has a booming and thriving fashion industry, as is clearly seen in NYC, and so now LA will have its share of fashion-minded lawyers.

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The Institute will allow law students the ability to get a certificate in Fashion Law by taking four fashion-specific courses.  The focus will be on issues such as industry-specific contracts and law related to celebrity endorsements. Students must also take classes in related topics like intellectual property. The certificate will be available to the class of 2015. Courses already on line are — Fashion Law; Fashion Law Business Transactions; a Fashion Law Clinic; & Fashion Modeling Law. I’m unsure if these were already being offered, but I’m sure more courses will be added or further developed with the certificate now in play.

I am in love with this concept and Loyola will be encouraging exactly what I am doing right now — interacting with nonlawyers in the fashion industry and getting real world experience with emerging designers. Fashion law is growing and I’m sure in the next few years, more people will understand the practice better. Hopefully more institutes will continue to pop up, but it’s still great that so many other universities at least have fashion law as a course. More and more firms and attorneys are dedicating work to this field.

For me, wanting to work in this field, I am grateful that my school, New York Law School, offers Fashion law and most, if not all, of the intellectual property courses. It would be nice to have 1 or 2 more though! But I’m also thankful to have started my blog and really get out there to meet people in the fashion industry. I’m looking forward to the road ahead.

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Protecting the Work of Fashion Designers, Part 2: Design Patents

A few weeks back, I began a series on discussing the various laws that afford protection to fashion designers. There might seem to be a wide array of options for protection, but that this is not really the case. Each area, copyright, patent, trademark, etc, are all laws for different aspects within a designer’s work and have very rigid qualification standards. This piece is a more in depth look at the area of patent law with regard to designer protection. More specifically, design patents. There are 5 main questions a designer must consider before attempting to obtain a patent:

  • Will my design meet the patent requirements?
  • How much protection will I be afforded?
  • Is it worth the time?
  • Is it worth the cost?
  • Will the design still be relevant, in terms of success and sales, when the design patent is granted?

The Standard

Before even attempting to obtain a design patent, one must see if their design meets the rigid requirements. There are two types of patents. First, there is a utility patent, which protects the way a product is used and works, such as machines. Second, there is a design patent, which protects the way a useful product looks. So right from the definition, is a requirement in the product being useful. Further, there is a requirement that the article be new, original and ornamental. Thus far, with fashion, clothing has not had the most success, but there are a few success stories.

viewerOne such example is from True Religion, a brand of denim/jeans. The patented area is solely to the ornamental stitch pattern applied on the jeans. The design patent gives the owner the right to prevent others from making, using, or selling a product that so resembles the patented product that an “ordinary observer” might purchase the infringing article, thinking it was the patented product. But this brings up the next question a designer would need to consider, what is actually being protected?

What is protected?

When it comes to obtaining a design patent, it doesn’t mean a designer still won’t have to work at maintaining that protection. Take a look at the design patent example with Stella McCartney. A design patent was granted for the successful mesh polka dot dress from the brand, the “Lucia.” The only portion of this dress that receives protection is the dotted portions, including the dots. So while yes, if another dress had the other areas in a different fashion or form, but still utilized the sheer cutout polka dot style as Stella does, it could be infringement. The key component is that a court would likely require that for infringement, the competing garment would need to utilize dotted portions of the same shape and pattern. In examples such as with Stella McCartney, or True Religion, the design patent is very narrow, only to the patented portion, which may or may not disallow others from still designing similar pieces that is not deemed infringement.

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There are several other factors that a designer must consider before moving forward with acquiring a design patent. It may be that their work meets the requirements and could offer some protection, but the remaining factors all go to 1 main question, is it all worth it in the long run? One such factor area to consider is with that of time. It could take up to a year or even longer to be granted a design patent. If the designer chooses to continue selling a piece before then, there is still all that time where no protection is being granted. A designer might consider holding off on a piece that could receive protection and this goes to a 2nd factor.

This factor being, if waiting with all that time in this process, will this design still be relevant? Fashion trends and style are always changing and evolving as seasons change and upon new trends emerging. A piece that might work now in Fall of 2013, may not be a trend or succeed as well the following year. Most likely, a designer would want to patent a piece that is truly a staple with fashion, a piece that would rarely go out of style and a garment that could be worn for a long time to come. Looking back for example to the True Religion jeans-jeans are items that will always be worn and generally don’t vary much in color so the chances of jeans not being relevant are slim to none. Even in the case of Stella McCartney and this dress, it is also the case that this dress could be relevant and successful for many years to come. I am sure the dress is offered in other colors, but even just with black, a woman’s need for a great black dress to be included in her wardrobe will always be a necessity. Trends such as sheer effect, polka dots and cutouts are also seemingly trends that will be used in garments for many years to come. Finally, a designer must consider cost. This process would likely require the use of an attorney and all of the filing fees. This cost should be weighed against potential success of the patented garment and if it fits within the designer’s budget.

There are some modern case examples one could look at and a few perhaps appear that the design patent and process do yield a certain amount of protection to designers. Victoria Secret released the bra, 100-way strapless convertible bra. However, Katherine Plew alleged that this bra was covered under her registered design patent. The issue was that the loops on the bras, whole not placed in exactly the same location, did create a result of arranging straps that was effectively the same. This case ended up settling.

There was also the case with LuLu Lemon and their accusation that Calvin Klein was selling yoga pants, which were infringing upon their design patent. LuLu’s design patents were encompassing of a waistband for one pair and then the styles of the yoga pants for the other pairs claimed as infringing. This case, also ended up settling.

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In summary, the prospects of obtaining a design patent should be considered when the innovative work involves a product having unique ornamental features. There are recent cases that demonstrate that a designer can protect their designs thru this process, but the designer must still make certain that their own design fits the requirements. The possibility of obtaining other forms of intellectual property protection, in addition to the design patent, should also be considered.

The Kardashian Cosmetic Brand Legal Battle Ensues-Will Their New Mark Be Granted Federal Trademark Protection?

The Kardashian cosmetic brand legal drama is the 1st fashion law issue I ever wrote about. I am going to keep updates coming as all of the legal details unfold because I want to follow it from start to finish. I believe that a settlement should occur and so I am hoping to report that aspect one day! I wasn’t sure if the recent updates were worth reporting yet, but after some research I am very eager to blog about 2 areas, the first relating back to a legal series I just recently blogged about.

With my own legal series I am writing, it is all culminating to exposing some very serious legal issues that the fashion industry must face. One major area being the lack of protection afforded to designers and for other aspects of the fashion industry. I will leave that soapbox for another day. Today I am posting about the serious practical issues for trademark law today and demonstrating it thru this case. Lee Tillett, owner of Kroma Cosmetics, is just one of the opponents the Kardashians/Boldface have with their legal battles. Tillett, while successful, is comparatively a smaller business model to that of the Kardashians. However, she took the time and budgeted the funds to register her mark with the USPTO, with of course, the hope being that her mark would be sufficiently protected. However, that is not the case as it’s presented today-a brief recap of the Chroma v Khroma v Kroma battle.

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No final determination has yet been issued from the court. Neither has an official settlement been reached. However, in the meantime, Tillett’s smaller company must continue to pay legal fees and bonds to ensure that her mark remains protected. It’s truly a sad day that a company who abided by the law is now having to pay more just to  ensure enforcement of protection. Even though I believe a settlement will occur, it might not cover all of the damages or legal fees Tillett has accumulated. But the public can help! Friends of Tillets have created a webpage , twitter and facebook forum for any members of the public to donate to her cause. These are great sites to look more into if this issue has sparked your interest. If you believe in the cause and if you have the capability to assist, I would urge you to do so.

Getting back to the actual case updates, it is official that Boldface’s motion for a stay on the injunction has been denied. Tillett was also able to successfully lower the cost of the bond to secure the injunction to go from $50,000 to $5000. Perhaps the biggest update is that the Kardashians filed for a new trademark application for that of KARDASHIAN BEAUTY. These products are already in full force and are on the market-CVS, Ulta, UK website, Facebook and Twitter. However, my recent visit to check the official status of the mark showed that initially, it was denied. A couple of issues were raised and so now the Kardashian legal team must address those issues in order to receive federal trademark protection. One of the issues is a familiar one to Boldface and that is the likelihood of consumer confusion. It’s a bit odd however that the cited marks that KARDASHIAN BEAUTY is too similar to are marks already registered by the Kardashians. Other issues are the relatedness of the goods and trade channels, but more specifically is that all of the marks feature the term KARDASHIAN. The other issue is that the mark is merely a surname. The USPTO does recognize that it’s a rare surname, but that combining a surname with the generic name of the goods doesn’t overcome this issue. So this is not to say that the mark, since its already in use, will not ever receive federal trademark protection, but it brings up some questions, again, for me about the level of diligence the Kardashian legal team is providing.

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Let’s do a recap of the failed legal work for this case:

  • Attorneys are generally the ones who file the trademark application, so now, 2 have been filed and rejected by the USPTO. I question if due diligence existed with the research and use for either of the marks. I also question counsel being provided to the Kardashians on pursuing other names or taking alternate courses of legal action.
  • Rather than appealing the initial trademark rejection, attorneys filed a declaratory action for the Kardashians-basically skipping an integral step of the Trademark process.
  • Also, it’s unclear that any warnings were given to the Kardashians to not launch or use this mark, despite the USPTO rejection or receiving cease and desist letters from KROMA and CHROMA
  • Being that no settlements have been reached yet, I’m questioning the advice being given for this area, at any point during litigation. Legal teams have instead vehemently argued against an injunction and lowering of the bond amount and for the stay of the injunction, all of which were denied.

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It appears to me that there was some knowledge, yet no great advice given to deter the use of a mark that would certainly face legal troubles. If this was the plan for the Kardashians to have a successful cosmetic line, I’m not seeing how these courses of actions will help in that regard. My hope for the future is that this all does come to a quick end and that more diligent legal efforts are offered to the Kardashians.

The Hollywood Hills Burglar Bunch-The Legal Backdrop

So last week I did 2 featured retail posts, one for BaubleBar and the other for the ID Pop Shop at Chelsea Market. Therefore, this week, I am writing 2 legal posts-reminder of the one posted earlier this week, an Introduction to Laws Affording Protection to Fashion Designers. This post is going to discuss the legal background of the story of the infamous Hollywood Hills burglaries. The reason being is because the recent release of the film, The Bling Ring, which portrays how this whole story allegedly occurred. I wanted to do a post on this topic for my fashion blog because it would allow a bit of a legal analysis to a bit of a different realm versus that of trademark or copyright law. Another reason, is this burglary scheme was a major operation that occurred just recently and a lot of what was being stolen was name brand items from celebrities home. In researching this topic, I have seen that these teenagers believed their victims were fashion icons and the desire to own these major fashion pieces or items. I want to see how the movie conveys that aspect of this tale, but for now, as this is a more legal post, lets look at those facts.

The basic synopsis of this series of cases, is that a group of teenagers in California, burglarized the homes of several celebrities from the end of 2006 until mid-2009. Reports indicate that the total amount of burglarized goods was around $3 million. Over 50 homes were targeted, while much less than that were actually broken into, with Paris Hilton actually being one who was robbed several times. Other victims included Audrina Patridge, Rachel Bilson, Orlando Bloom, Miranda Kerr, Brian Austin Green, Megan Fox, and Lindsay Lohan.

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This group was able to mastermind their burglaries with this plan- use of Google Maps to find their targeted homes and uses of the website celebrityaddressaerial.com and determining when the inhabitants would be away by researching their schedules through websites including Facebook and Twitter. Items being taken were a vast array of fashion brand clothing and jewelry. Some of the times it would be with breaking in, such as with Hilton’s home, the door was found to be unlocked. More specific items taken were a Rolex from Bloom and Louis Vuitton luggage from both he and Kerr. So how did arrests and convictions happen?

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An anonymous informant tipped off about the Lohan burglary. One of the members of the goup’s face was captured on a surveillance camera. Prugo was the first to be arrested and later confessed with no plea deal struck. He informed the police of future targets and the past crimes. Two weeks later, police obtained search warrants to search the other members of this group’s homes. The other members were then arrested. So here are the members of this group, their involvement, and resulting convictions and information.

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Rachel Lee is the alleged ringleader of this group (not in photograph above). She was reported to have had a good upbringing and certainly wasn’t needing to steal clothes. However she likely did due to obsessions with these celebrities, reality TV and wanting to be on the same fashion level as her fashion icons. Lee did end up serving time, but after a little over a year was released on parole. She did make a plea of no contest to the burglaries. Charges of conspiracies to commit burglary and even involvements to other burglaries were dismissed.

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Nick Prugo was one of Lee’s best friends, bonding over a love of fashion. Issues of drug addiction were at play with his role in the group and in some of the burglaries. He also pleaded no contest and was sentenced to 2 years in prison, but did not either serve his full sentence.

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Alex Neiers-She was reported to have had trouble at home and even lived with Prugo for a short time. She also made a plea for residential burglary and was sentenced to 180 days in jail, additional three years of probation, as well as being ordered to pay $600,000 worth of restitution to Orlando Bloom. She was released after 30 days served and even spent same cell time when alleeged victim Lohan was also serving time!

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Diana Tamayo-She also made a plea of no contest and was sentenced to 3 years probation and 60 days of community service.

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Roy Lopez, Jr.-He was given three years of probation for also pleading no contest.

Courtney Ames-She was sentenced to three years of probation and two months of community service. Charges against her of conspiracy to commit burglary, burglary and receiving stolen property were dismissed.

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Johnny Ajar-initially faced with ten felony charges — six counts possession for sale of a controlled substance, three counts possession of a firearm by a felon and one count possession of ammunition, plead not guilty to all of them. Later, however, he pleaded no contest for selling cocaine, possession of a firearm by a convicted felon and one count of receiving stolen property. The stolen property charge referred to a Rolex watch owned by Orlando Bloom. Ajar was sentenced to three years in jail. He was released less than a year later.

I make a point to still post on this topic, even though dated because there is a re-visit to its relevancy with the movie release. I will post more on that aspect after I watch it. I do think there was a fashion obsession that drove a lot of this crime and I don’t see differences with other more typical crimes. Counterfeiting is major and in part for those who make because they want to make money. For those who purchase the goods, its that need to want to own the major labels, but not have to pay the major price! There are claims all the time of copying and replication, again because of that desire to be in the fashion industry and make money, but perhaps doing it at a portion of the cost. Fashion and the love of it is laced throughout this major crime spree and I look forward to seeing the tale on the big screen to how all that happened developed.

The Laws that Afford Fashion Designers Protection-Part 1: The Introduction

This is the start of a series on the various types of law that fashion designers have to protect their work/designs. This first post will be a brief overview of what legal protections are currently available and the required legal standards. I will briefly introduce trademark, patent and copyright as the major sources of law that governs the fashion world.

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Trademark protection is what many designers will use to protect a word, symbol or phrase used to identify their merchandise. Courts have even extended, in some circumstances, protection beyond the word/symbol/phrase to that of aspects of a product, such as color. This is more commonly known as trade dress. So for example, Christian Louboutin is known for their red soles on the bottom of their shoes/heels and has recently acquired trademark protection for that aspect.

clHowever, trademark law only protects a designer’s mark from infringement if another company were to create a similar mark. The similarity would have to cause a likelihood of consumer confusion. Further, in order to bring an infringement suit, the designer would have to claim a valid common law right by being the first to use in commerce, or would have to be the first to register their mark with the U.S. Patent and Trademark Office. Many designers face the issue of their designs being replicated, but trademark law would not cover this area. However, trademark law does assist with one major area, counterfeiting. The problem with counterfeiting litigation is ensuring that counterfeit production and sales actually cease. Its not to say a victory is not possible, but a fashion designer or house seeking protection needs to be able to name the company sending the shipments of counterfeit goods to be most effective.

Another major area of law that affords some protection to fashion designers is that of patent, more specifically design patents. A design patent protects the way a useful product looks, but does require that the article be “new, original and ornamental.” The legal standard is not an easy one to meet or else every designer could acquire one. There is also the issue of the timing involved in acquiring a patent as it could take up to a year or more. Fashion is all about what is in demand or trendy for a given season, so a designer would have to ask about the longevity of a given design and is the cost and time worth it? There is also an issue of actively protecting what has been patented. A court would have to find similarity in the product allegedly infringing a patented design. All in all, a design patent can be quite difficult to acquire and is not an automatic guarantee of protection depending on the scope of the issued patent.

Stella McCartney's recent design patent on this sheered cut-out polka dot dress

Stella McCartney‘s recent design patent on this sheered cut-out polka dot dress

Finally, there is the area of copyright law. Currently, copyright law does not afford the best protection for designers to disallow others to replicate their designs. There are 2 main reasons for this. One, is that copyright law requires originality; with fashion, it is difficult to create a design that is sufficiently original to prevent others from creating one that is strikingly similar. Generally in fashion, one is being derivative of a concept or design that has come before. The second copyright limitation is that a design would fall under the copyright category of a pictorial, graphic or sculptural work. Copyright protection is only granted for this area when a design incorporates features that can be identified separately from and are capable of existing independently from the utilitarian aspects of the article. Generally, when courts analyze cases involving copyright over clothing, its found that the garments are utilitarian by covering a wearer’s body. If however, the design can exist separately and does not lend to the utilitarian aspect of clothing then a grant of copyright protection is possible.

Recent accusation of Alice & Olivia (on right) copying design of Vena Cava (left)-likely would not qualify as copyright infringement

Recent accusation of Alice & Olivia (on right) copying design of Vena Cava (left)-likely would not qualify as copyright infringement

Successful copyright infringement for L.A. Printex (on right) against Aeropostale (on left)

Successful copyright infringement for L.A. Printex (on right) against Aeropostale (on left)

Just as in other areas, a designer would have to take necessary actions in order to protect their copyrighted works. Generally, making sure the work has been registered with the Copyright Office is of the utmost important. If there is a claim of infringement, then upon any cease and desist letters not working, legal action would have to be pursued.

There are a lot of possibilities that have been discussed for how fashion designers and the like can protect themselves and their work. My final piece in this series is to find out what current designers in the industry feel about the laws-are they sufficient, what more could be offered, or how would they like to see a law written to best protect their hard work? I am going to be reaching out to attain and analyze these responses, but in the meantime I will address each of these areas a bit more depth by looking at recent cases and discussing the application of the law and any issues that remain. So keep an eye out for the next piece in this series and that will be on trademark law!

From Bryant Park to Lincoln Center-Will Mercedes Benz Fashion Week (“MBFW”) Have to Move Again?

mbfwIn September 2010, MBFW was hosted in Damrosch Park, at the Lincoln Center for the Performing Arts, for the first time. This came from increasing pressure at the time from Bryant Park Management to relocate. It may be that in the near future another move could occur.

About a month ago, NYC Parks Advocates, the Committee for Environmentally Sound Development and Damrosch family members filed a lawsuit. The suit is against NYC and Lincoln Center. The claim alleges illegal usage of public land for private purposes for a significant about of time during a 12-month calendar year, more specifically 10 out of 12 months. The 10 months is comprised of events such as MBFW (twice a year) and the Big Apple Circus.

Damrosch Park

Damrosch Park

Further, there is a claim that approximately $32 million of Damrosch Park revenue is being diverted to Lincoln Center instead of going to public parks.  The complaint cites to the NY State Public Trust Doctrine for its basis, which cites that “legislative approval is required for the alienation of or change in parkland usage.” Also, as a part of this claim, is a demand that a license agreement between the city’s park department and Lincoln Center be terminated, and that any concession revenue be paid to the city’s general fund. (From NY Times)

From NY Press, Kate Ahlers, of the NYC Law Department commented that “Fashion Week is an important part of the City’s cultural and economic fabric, generating $865 million each year while also creating fashion-related jobs…..And Lincoln Center maintains a close relationship with the City, presenting hundreds of free events each year.”

I did reach out to Lincoln Center, which declined to make any official comment at this time. This is just the start of this lawsuit and it is one I plan to track and post about upon new updates. At this time, I do not see any likelihood that fashion week, for the Fall of 2013, would be affected, unless some quick movement can be made with a motion and then an issuance of an injunction. However, formal suit has yet to be served upon the co-defendants, which means there answer has also not been filed. Being that June is almost over and fashion week starts in September, the timeline would have to pick up quite a bit of speed.

Lincoln Center

Lincoln Center

SO IF YOU ARE IN NEW YORK, WHAT ARE YOUR THOUGHTS? SHOULD FASHION WEEK MOVE? IS THERE A VALID CLAIM BEING MADE HERE? LET ME KNOW, AS I FURTHER REVIEW THIS ISSUE, I THINK THE PUBLIC COMMENT IS IMPORTANT!

The Kardashians’ Cosmetic Battle Updates: Chroma v Khroma v Kroma

The standard for trademark infringement is consumer confusion, so you be the judge?

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The Kardashians launched a cosmetic brand, KHROMA, in November 2012. Almost immediately, two legal actions were commenced and are still ongoing. There are a lot of details involved with both of these cases, which can be further read about by clicking here.

The first lawsuit was commenced by CHROMA, a Beverly Hills make-up studio, and was for trademark infringement due to the likelihood of consumer confusion in the marketplace. The suit is actually against Boldface, which is the licensing and branding company that holds the rights to the Kardashians’ names and likenesses. CHROMA made a motion for a preliminary injunction soon after commencement. The district court denied this motion and held that significant harm to Boldface tips the balance of equities against issuing an injunction. A trial date has been set for April 22, 2014.

The second lawsuit was commenced by the Kardashians, who filed for declaratory judgment that the use of KHROMA did not infringe the trademark rights of the cosmetic line KROMA, owned by Lee Tillett. Tillett then filed a counterclaim for trademark infringement alleging that Boldface’s intentional conduct, with using KHROMA, has caused actual confusion in the marketplace. Tillett also filed for a preliminary injunction, which was granted. However, Boldface filed for a stay on the injunction so this has not taken place and will not until a final decision is made. There has been no final decision, but a trial date has been set for April 22, 2014.

A recent update for these cases is that various media outlets, LA Times, Huffington Post, Daily Mail, etc, have reported that the brand name was being changed to KARDASHIAN BEAUTY. I contacted all of the parties, and Chroma and Boldface declined to make any comment at this time. However, Kroma Makeup made the following statement:

“Ms.Tillett is unaware of any name change having taken place. If reports prove to be true, she will be relieved to return her focus to her business, Kroma Makeup, the company she created 12 years ago. As a small business owner, this issue has been challenging. Ending the market confusion created by the Kardashian-sponsored Khroma brand will allow Ms. Tillett to move forward.”

I then visited the USPTO website to find that on May 6, 2013, a new trademark application was filed for KARDASHIAN BEAUTY. However, it is not certain how this change will impact the ongoing lawsuits. The fact that the mark is being changed does not mean the lawsuits just vanish.

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My personal thoughts on this matter are that the legal team for Boldface and the Kardashians should have been more effective with their role in counseling their clients. The media and general public might point the finger at the Kardashians, but I would point it more towards the attorneys. It was evident that legal action was likely to ensue. The client’s best interest would have been to use a different mark and avoid costly litigation. While Boldface and the Kardashians wanted to maintain their initial investments, I am certain that the costs and time exhausted to date far outweigh what the costs would have been to go ahead and change the mark last year. As it stands now, allegedly the mark is being changed, but costs are still unknown as legal expenses will continue, and damages or settlements still might occur.

All in all, it just seems like a long road to continue to use KHROMA, all to end up changing it anyways. Poor business decisions and the like could be blamed, but one can’t ignore ineffective or questionable legal counsel as well.