Fashion law is a multifaceted practice area that spans a variety of disciplines. It has never been more important to know how, when, and where intellectual property will have an impact on what you wear and how you dress than now. It never stops evolving. Time has changed what we have seen in the fashion industry. Grey market goods have seen an increase in the U.S. Stock market prices have seen a drastic swing ever since the public has been made aware of the possibility of obtaining knock off designer apparel and goods at a cheaper rate. Why would a consumer choose to pay a higher price for an article of clothing that the untrained and even the trained eye would never suspect is a fake? Consumers have become more spend thrifty as on-line retailers make it easier to make on-line purchases for a fraction of the cost of the genuine article. Even when the fashionista who derives great pride from wearing designer clothing and “knows how to determine the real Louis Vuitton from the knockoff” can walk around with a fake one if the purchaser is who they put their trust in to determine the authenticity of an article. It is unbelievable how many respectable retailers purchase luxury items that are not genuine and pass them off for the real thing.
When someone purchases and partakes in the entertainment of movies and music, whether free or paid, without the consent of the rightful owner (the distribution of most of these works is not for educational purposes, which would exempt the distributors from copyright infringement) they have infringed on the copyright of the rightful owner of that artistic work. The tricky thing with the infringement that occurs within fashion is that the purchaser may never suspect that they are cooperating with copyright infringement. How does this happen? Case in point. The fashionista visits their favorite luxury boutique to purchase the newest designer handbag by his or her favorite designer not knowing that the boutique owner purchased these handbags oversees from a manufacturer with a legitimate trademark to design and distribute handbags meant for the distribution in another country but not within the United States.
Grey market goods are like counterfeit items in that they both are used to derive financial gain by the sale of goods without the consent of the rightful owner, but this is where the line begins to get blurred. Grey market goods are created by a manufacturer with a legitimate trademark, but the way these goods are distributed are unauthorized. Counterfeit goods are created by a manufacturer without a legitimate trademark and therefore both the manufacturing and the distribution is unauthorized. In international trade grey goods and counterfeit goods can become intermingled therefore allowing for the importation of both within the U.S. in the same batch of goods.
So back to the fashionista who has just visited the upscale boutique to purchase the latest designer handbag that was obtained by the retail owner who didn’t know that these handbags where imported in a batch of counterfeit and grey good apparel. Is the handbag a knockoff or is it the real thing? Is it a grey market good or is it a counterfeit? One may never know. Now when a person purchases designer items they must be sure that it is the genuine article regardless of where it is purchased from.
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Fashion Law and Intellectual Property Considerations
Intellectual Property Law Master Class