Louis Vuitton Strikes Again: Shuts Down Art Exhibit That Commented On LV Trademarks

from the parody? dept

Earlier this year, you may recall that we wrote about a bizarre and ridiculous lawsuit that luxury goods retailer Louis Vuitton had filed against Hyundai, because for a couple of seconds in a Hyundai commercial, a basketball is seen with markings that sorta kinda mimic (though, not exactly) LV's handbag design. This is the same Louis Vuitton that had sued a fundraiser who had made t-shirts to raise money for Darfur, which included an illustration of a "pimped out" Darfur victim who was holding a bag that also mimicked LV's designs.

I was reminded of both of these cases recently when I was catching up on recent episodes of the TV show Mythbusters. In one episode, the myth being tested is whether or not you can build a cannon out of leather. In the final attempt, Mythbuster Kari Byron decides to "decorate" the cannon, and does so with symbols that, again, mimic the LV design, turning it into a "designer cannon." Unfortunately, it looks like Discovery doesn't let you embed clips (why, Discovery, why?), but here's a quick screen shot that I took: All I could think of was whether or not (a) Mythbusters/Discovery had cleared that and gotten a license from LVMH or (b) if LVMH was going to sue. I have no idea if anything has happened there, but you can rest assured that LVMH is busy on the legal front elsewhere.

ChurchHatesTucker points us to the news that LVMH has shut down an art exhibit in Japan that involved sculptures of nine locusts, that were each made from counterfeit Louis Vuitton bags: The sculptures were clearly meant to act as commentary on the nature of luxury brands and counterfeiting, as they were named Batta Mon, which the article linked above says is:

a play on the words batta ("locust") and battamon (slang for "knockoff"). According to the artist, the works are meant to raise questions about the relationship between authenticity and imitation in a consumer-driven society.

It seems like that's a perfectly good subject for commentary through art, and it seems ridiculous that LVMH is stifling the artist's work. Nothing in this exhibit is going to make anyone think that it was endorsed by LVMH. It certainly isn't doing anything to create consumer confusion. The artist is pissed off, but the museum said it didn't want to deal with a legal fight, so this artist's work gets taken down as yet another company abuses trademark law. Watch out, Mythbusters, you may be next...

Filed Under: art, commentary, culture, japan, mythbusters, trademarks
Companies: louis vuitton

Troubling Ruling Against Web Hosting Firm: Your Liability Just Went Up

from the not-good dept

Last year, we wrote about a troubling ruling against a web hosting firm, Akanoc, that was sued by Louis Vuitton for hosting some sites offering up counterfeit goods. We had trouble with the idea that a web host should be liable for what its users were doing, but some of the details that came out in the comment suggested that the hosting firm may have brought it upon itself by not responding to various takedown notices. Even so, the precedents set in this case are going to be applied to situations where the webhost wasn't such a bad actor, and the latest ruling in that case is especially troubling on a variety of points (you can read the full ruling as well). While the common saying is that "hard cases make bad law," at times easy cases can make bad law as well. That's because in a case like this, where it seems clear that the web host was a "bad player" it's easy to pile on the punishments, without realizing how those may get applied in other cases, with players who aren't nearly as bad.

Among the troubling aspects of this ruling, called out in Eric Goldman's analysis above, followed by my own commentary:

• posting photos of counterfeit goods constitutes direct copyright infringement
  
  Reading through the actual ruling, what happened here isn't entirely clear, but it does seem troubling. The relevant part of the ruling states:

  Further, the Court rejects Defedants' contention that the digital pictures of the counterfeit goods cannot constitute "copies" under the Copyright Act because Plaintiff's copyright covers only physical goods... The Court finds no support for Defendants' position in the language of the Copyright Act, which requires only that copies of a copyrighted work be "fixed by any method now known or later developed, and from which the work can be perceived reporduced, or otherwise communicated, either directly or with the aid of a machine or device."... The digital pictures stored on Defendants' servers fall squarelty within the statutory language. To find otherwise would render protection of a copyright meaningless by permitting, for example, unauthorized digital copies of a paper photograph to be noninfringing simply because the copy is embodied in a different medium than the original work. Thus, the Court finds that the evidence was sufficient to support the jury's finding of direct copyright infringement.

  But, that "example" at the end seems to be quite different. From the basic description, this isn't just a photograph of the official object, but a photograph of the counterfeit. Now, I could see how the counterfeit could be breaking trademark law, but why should a photograph of the counterfeit also be copyright infringement?
  
  
• it's become vogue to challenge copyright statutory damages on constitutional grounds, but this court rejects a due process challenge against both copyright and trademark statutory damages. A Gore challenge to the ratio of actual to "punitive" damages was inapplicable to statutory damages.
  
  Both the Jammie Thomas-Rasset case and the Joel Tenenbaum case have argued that the statutory copyright damages are unconstitutional on these grounds, using the Gore case as an example. Now the RIAA has a case to point to that says the Gore ruling isn't applicable for statutory damages. This doesn't mean that the unconstitutional claims won't fly, but the lawyers making those arguments are going to have to dig deeper to make their case.
  
  
• the defendant's sole officer was personally liable for the infringements because he "had nearly complete control over Defendants' operations. He was the general manager and sole owner of the corporate Defendants....He also held the principal decision-making authority as to responding to infringement notices, and he instructed his part-time employee regarding how to respond to such notices....Moreover, he was the designated agent under the DMCA for receiving infringement notices and decided whether or not to terminate offending customers." Does this ruling imply that the person designated as the 512 agent for notice has an increased risk of personal liability...?
  
  Indeed, this is the most troubling part of the ruling. It basically could make the designated DMCA agent for any company potentially personally liable if he screws up in dealing with DMCA takedown notices. As Goldman notes later in his post: "What sucker will agree to be a 512 agent in the future?" It might not be that bad, because the court also seems to be saying that the fact that this guy ran the company by himself was part of the issue, but even that's troubling. There's a reason that people set up corporations, and that's to protect the individuals from personal liability, even if it's just a one-person company.

Now, it may be clear that Akanoc did a number of questionable things here, but it's resulted in a bad situation where a court can make rulings applying to a likely "bad actor" that will undoubtedly be mentioned in future cases relating to actors who weren't necessarily so bad, and we may all suffer the consequences for it.

Filed Under: copyright, dmca, liability, web hosts
Companies: akonic, louis vuitton

Dreadful Ruling: Web Hosts Hit With $32 Million Judgment For Content On Customers' Websites

from the chilling-effects dept

Well, this is bad. We've worried in the past about the lack of a specific safe harbor to protect trademark infringement claims being brought against third party service providers. The DMCA has a safe harbor that protects against copyright claims, and the CDA has a safe harbor that protects against all non-intellectual property claims, such as defamation. But trademark is a loophole... and because of that you can get some really dreadful results. Earlier this year, we noted that a court had ruled that web hosting firms could be liable for trademark infringement done by their customers. The case involved luxury goods retailer Louis Vuitton suing some web hosting firms for the actions of their customers. Any common sense ruling would find that the hosts are simply the tool providers, and it was the customers running the actual websites who were liable. That is, if there were common sense.

Instead, as Eric Goldman alerts us, the jury has sided with Louis Vuitton and awarded the company $32.4 million in damages from the web hosts.

This is a bad end result no matter how you look at it. If you do any sort of web hosting, your liability just went up by a tremendous amount, and you may now be expected to proactively police all your customers' websites for anything that might possibly be seen as trademark infringement. It's safe to say that this is not what Congress intended -- given the nature of the safe harbors it set up in the DMCA and the CDA. Hopefully, either a higher court will toss this out and/or Congress will finally get its act together and extend safe harbor protection to trademarks as well.

Filed Under: chilling effects, liability, safe harbors, trademark, web hosts
Companies: akanoc, louis vuitton

Court Finds Web Hosts Liable For Counterfeit Sales By Web Sites

from the bad-precedents dept

While a US court last year (correctly) found that eBay is not liable for counterfeit goods sold by users, a recent court case won by Louis Vuitton surprisingly found that a web hosting company could be found liable, if a site hosted by the company sells counterfeit goods. The court finds the site guilty of both contributory copyright infringement and contributory trademark infringement, claiming that the host knows about the infringement due to notices from Louis Vuitton, without explaining how the hosting firm could possibly know if the complaints were legit or not (or whether the goods being sold were counterfeit or not). In a bit of a scary connecting of the dots, the court suggests that because the web host was notified, and because it could then disable the accounts, it's now liable as well. That creates a huge chilling effect for web hosts -- as it encourages them to basically shut off any website based on any accusation of selling counterfeit goods. If web hosts don't do that, they may face significant liability. There's nothing wrong with companies going after the actual sellers of counterfeit goods -- but going after the web host (and winning!) sets a dangerous precedent.

Filed Under: counterfeit, liability, web hosts
Companies: louis vuitton

European Court To Review Whether Google Can Sell Ads On Trademarked Terms

from the hopefully-a-little-sanity dept

While US courts have (mostly) finally realized that simply selling search terms based on someone else's trademarked name should not make Google liable, French courts haven't been so enlightened. The huge fashion retailer Louis Vuitton won a lawsuit against Google, because some advertisers had purchased search ads on the term "Louis Vuitton" to advertise "Louis Vuitton Fakes" and "Louis Vuitton Replicas." It's hard to see the common sense reasoning to support LV in this case. In fact, the ruling seems problematic on two separate accounts -- both on the question of whether this was a trademark violation and whether it's Google who should be liable even if it is a trademark violation.

On the trademark question, a trademark is not about ownership of the mark itself, but it was designed to prevent customer confusion (i.e., telling someone that they were buying a Louis Vuitton product when it really wasn't). While the name is being used to sell counterfeit products, there shouldn't be any customer confusion here since the advertisements make it quite clear that the products for sale are fakes. No one will click on such an ad and think they are buying a legitimate item. So it's difficult to see how that leads to any sort of consumer harm.

On the liability question, even if you do believe that this is trademark infringement, the infringement is on the part of the advertiser, not Google. It's the advertiser that caused the confusion with the advertisement. Suing Google for such things is simply an attempt to shift the liability from the party who actually did something, to the company with a ton of money (funny how that works).

It appears that this case is now back up for discussion, as the case now moves out of France and into the European Court of Justice. Hopefully that court will be more reasonable in its approach to dealing with this particular issue.

Filed Under: eruope, keywords, search ads, trademark
Companies: google, louis vuitton

Louis Vuitton Sues Darfur Fundraiser; Seems Unclear On The Concept Of Trademark

from the such-fashionable-bullies dept

An artist named Nadia Plesner recently put together a project to try to raise money for the victims of genocide in Darfur. As part of the campaign, she created a t-shirt with a drawn image of a Darfur victim "pimped" out to look like Paris Hilton -- that is, carrying a designer handbag and a small dressed up dog. The entire profits from the t-shirts are going to help the victims. The handbag drawn in the image is not specifically a Louis Vuitton bag, but the design firm seems to have gone ballistic, claiming all sorts of intellectual property rights it simply does not possess. First, it sent a (admittedly friendly) cease-and-desist, which Plesner wrote about on the site, while responding and telling the company that she would not take down the t-shirt or the image. In response, LV went from friendly to nasty. It sued, demanding $7,500 for each day she keeps selling the product, $7,500 for each day she displays its original cease-and-desist letter and (my favorite) $7,500 for each day she mentions the name "Louis Vuitton" on her website.

While, there may be some difference due to the specifics of trademark law in Europe, it's hard to see how this is not overreaching. This is an entirely non-commercial venture. All of the profits are given to charity. The design has some differences from the Louis Vuitton bag, and hardly seems likely to specifically damage the Louis Vuitton brand (the lawsuit will take care of that). The t-shirts are clearly not competing with Louis Vuitton and there's little reason to have anyone think that Louis Vuitton somehow "endorsed" this effort. Furthermore, posting the cease-and-desist or even mentioning the name Louis Vuitton simply should not be infringing activities. I don't know if Europe has the equivalent of the "moron in a hurry" trademark test, but LV gets the "moron in a hurry" award for the week.

Filed Under: charity, darfur, nadia plesner, trademark
Companies: louis vuitton