Saturday, March 03, 2012

"Egregious action" & "serious willful infringement" by Penn law students of Louis Vuitton trademark? - C&D letter

So many IP lawyers have become so enamored of the word "egregious" that, if it were a trademark, it would now be seriously "diluted".

The Oxford English Dictionary tells us that some of its meanings are as follows: 
2.2 Remarkable in a good sense: a.2.a Of persons and personal qualities: Distinguished, eminent, excellent, renowned. Obs. (exc. in humorously pedantic use).  b.2.b Of things: Remarkably good or great. Of events and utterances: Striking, significant. ? Obs.  3.3 Remarkable in a bad sense; gross, flagrant, outrageous. [This sense does not belong to L. egregius or to It. egregio; prob. it arose from an ironical use of 2, though our earliest quotations afford no evidence of this.] a.3.a of persons and personal attributes. 
(emphasis added) 

It seems to be a bit like another favourite lawyer word, namely "fulsome". In other words, it's potentially very ambiguous and one should use it with great care and not promiscuously. Indeed, the word is not often heard outside of legal circles. For example, I don't know if it is  part of Rush Limbaugh's vocabulary. It probably has too many syllables and is too difficult to spell.

So, speaking of "egregious", Louis Vuitton has just sent what many might consider an "egregious" C&D letter (readers may decide for themselves in which, if any, of the above senses they wish to understand the word) to the Dean of Law at University of Pennsylvania, which is one of the top rated law schools in the USA. The law students at Penn are planning a conference on fashion industry law, and are using an invitation/poster showing a parody of the famous LV pattern interspersed with © and ™ symbols. LV says that this is an"egregious action" and a "serious willful infringement".

LV is an aggressive litigator not only against counterfeiters, which is not controversial. Last year, it obtained an ex parte injunction - later lifted - against the artist Najda Plesner for her "Darfurnica" painting. This was very controversial. Here is a detail of the original.

No doubt, this action by Louis Vuitton had the unintended effect of bringing considerable attention to the artist's work. 

The author of the LV Penn letter says that he “would have thought that the Penn Intellectual Property Group, and its faculty advisors, would understand the basics of intellectual property law and know better to infringe and dilute the famous trademarks of fashion brands, including the LV Trademarks, for a symposium on fashion law.”

Hmm.  It would indeed be a better world in general if the authors of many "egregious" C&D letters were to “understand the basics of intellectual property law”. And it would also benefit their clients if there were greater awareness of the notorious Streisand Effect.

Penn law has responded here on behalf of its students. The author of the C&D letter has been invited to attend the conference. Perhaps LV will want him to attend. It looks like there will be a good discussion of the "basics of intellectual property law”.


1 comment:

  1. Surely any "right-thinking person" (you know, the ones you never find in a random sample) would think that's OK.

    Playing the devil's advocate and ignoring that it's in the context of a poster that doesn't purport to be selling handbags, I wonder if they (LV) could successfully argue either:

    That simply placing that little (C) as a design element near to some of the LV trademarks could be misinterpreted as a claim of copyright or trademark on the overall design, or individual symbols (you know, if you stand far enough way, with the lights down, have a drink or two, and squint just right...). If so, then that little "(C)" and the letters "TM" would simply be too dangerous to ever ever use in any design. Ever.

    Or that, someone who can't read would not be able to see that the use is parody when the text is taken into account. If so, that would seem to suggest someone at Louis Vuitton can't read.

    Also, everything sounds criminal when you call it "Exhibit A".

    Very truly yours,

    Anonymous, Esq.