Finguerra-DuCharme And Garber Write About Key Fashion Trademark Cases

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Pryor Cashman Partner Dyan Finguerra-DuCharme, co-chair of the IP Group, and Associate Kate Garber, a member of the IP Group, co-wrote an article for World IP...
United States Intellectual Property
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Pryor Cashman Partner Dyan Finguerra-DuCharme, co-chair of the IP Group, and Associate Kate Garber, a member of the IP Group, co-wrote an article for World IP Review about two key trademark cases that could impact fashion brands.

In "Why a pair of fashion TM disputes could 'hamper' brand protection," Dyan and Kate look at Coach v Gap and Penn State v Vintage Brand, which "raise issues of whether a junior user can use a brand name on commercial merchandise (that is not a traditional fair use) and avoid liability under the Lanham Act," and address whether the owner of a word mark can prevent another from using that word in its ordinary meaning on apparel. Both cases may "have serious ramifications for brand enforcement and the licensing industry."

The article reviews both cases, and weighs how the outcomes of each could influence the IP protections fashion brands enjoy in the marketplace:

Coach and Penn State have made substantial investments in developing brands that have become household names. Brand owners have a real interest in managing how their brands are perceived, and protecting licensing arrangements.

If the courts hold that the defendants' uses are not infringing, a brand owner's ability to control the use of their marks and license their marks may be hampered.

Each case ... underscores the myriad issues surrounding whether the use of another's trademark for merchandise constitutes infringement, unfair competition, is merely ornamental, is a functional use, or is likely to cause consumer confusion.

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