Guess? Who: Gucci "victory" injunction, $ 4.6 million mark in its complaint against Guess?

  But the cost of doing business? This is what prompted many to the magistrate
Decision in Gucci America Inc. v. Guess?, Inc. (SDNY 2012) a trademark infringement suit, where a large $ 120 million claim for damages to a small $ 4,648,000 has been paid for Gucci.

6th May 2009, Gucci filed a complaint against Guess, guess alleging rape or trademarks of Gucci design five marks. Gucci strained an injunction and $ 120 million in damages. Slightly more than three years later, 21 May 2012 the judge issued a preliminary injunction, Gucci, and a small fraction of the damages requested.

Gucci is an Italian fashion company and luxury goods Isone largest and best-known fashion and accessory brands in the world today. The Gucci brand appears on everything from watches to cars, buy and means belonging to an "exclusive club". Thus, both reaching their consumer lifestyle, consumers who regularly wear Gucci products, and "aspiration" of consumers who may be younger and less wealthy, but who "strive for exclusivity of the brand is Gucci." Between 2004 and 2009, Gucci has 1.3 billion worth of products sold.

Guess is also a fashion company, but for the middle class. Guess the target market is women aged 15 to 30, to identify with the "sexy, trendy, flashy image of the brand Guess." Consumers understand that the brand is not the same style of Guess and Gucci. In the last decade Guess were twelve complaints about copyright infringement. In any case, Guess the problem is resolved with the complainant, or immediately stop using the trademark in question.

Both companies spend enormous amounts of advertising and promoting their brand every year.

If necessary, the use of multiple Guess designs on Gucci claims intervened and diluted five of its brands. Particularly at issue Gucci, which (1) a green band, red and green handbags, luggage and small leather goods used different, (2) a repeat of "GG" pattern, consisting of a pair of registered face inwards "G" s inverted ( 3) of this model use in conjunction with a diamond (4) in the form of "G", and (5) is a trademark of the script with the name of the tag. Rates corresponding brands were (1) three different colored stripes, including a green stripe, red and green, used on some of his shoes (2) is a registered trademark of the "Quattro G" logo and design, consisting of four and interlocking "G" s (3) the use of this model is rotated clockwise by 45 degrees and is surrounded stitched from one edge of diamond-shaped [Interestingly, this mark with the PTO was "filled square" as], (4) a stylized square "G", and ( 5) a registered script with the name of the brand.

In its final decision was the judge for an injunction prohibiting the use of rates Gucci Quattro G design in brown / beige, green band, red and green (but not strips other colors), and some brands G-space. Guess was allowed to continue with other brands. On the side of the damage, the judge ruled only Gucci has been limited to a balancing of gains and losses, gains from the sale of authorized products with the G-model Quattro colors brown / beige and the band GRG. So your request for $ 120 million, so the judge only Gucci $ 4,648,000 for damages to be awarded.

Reported almost $ 2.7 billion in net revenue from the sale of products and licenses to guess the world in 2011. An adverse decision by the $ 4.648 million is a drop in the ocean.

What has it bad for Gucci?

First and foremost, many arguments of Gucci was flawed from the beginning. Fashion, such as literature is based, built on a common vocabulary: a rock is a rock, a T-shirt is a T-shirt, and a shoe is a shoe. Like copyrights, there can be no monopoly on the basic building blocks of the buzzword, even though the slightest deviation can be creative, worthy of protection. And use of this slight variation, to describe the creative source for a product or service is exactly what is intended to protect trademarks.

The essential question in a case of trademark infringement is whether the defendant's mark likely to avoid consumer confusion about the origin or sponsorship is to induce the defendant's goods or services. In particular, courts look to see if many ordinary prudent buyer probably misled or confused about the origin of the product or service, because the defendants are using the brand on the market. In connection with the post-sale confusion when a consumer to buy a product at a lower price, knowing the general public is probably destined to be confused or think that it's the same prestige as the real thing, Hermes International has to be deceived 'lv Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 108 (2d Cir., 2000), the applicant must establish a likelihood of confusion "confusion among a substantial number of after-market observers, taking into account consideration of all related Hazards observation post sale. "For many cases of post-sale confusion to pursue particularly difficult because much of the evidence is speculative.

While trademark infringement is a federal law based on private action, see Lanham Act, 15 USC § § 1114, 1125, each has developed its own circuit, although essentially the same number of tests to find risk factors to the confusion. The courts in the second cycle for the use of a test factor of eight Polaroid Corp. v. Electronics Corp. Polarad, 0287 F.2d 492, 495 (2d Cir. 1961) to evaluate a request for confusion. The test asks the court to (1) the strength of the brand of the plaintiff in his environment, (2) the similarity between the marks of the plaintiff and the defendant, even if they produce the same impression every judge to see in series, (3) close to the competitive product, look at the nature of the products and the structure of the relevant markets, (4) if the two companies are likely to compete directly in the same market (the "Fill The Gap are" factor), (5) Is confusion, (6) the defendant's intent or malice in the introduction and use of the mark (7) if there is a danger to the poor quality of the product of the accused, it hurt the reputation of the plaintiff, and (8) the sophistication of consumer (usually during the "consumer" is a direct buyer, in one case after the sale "consumers" are casual observers and buyers are not necessarily).

The judge assessed all five brands with the eight factors [Author's note: because the outcome of the claim of dilution as requested by the confusion, I will require only confusion, for brevity]. All trademarks, that (1) the "bridging" factor is neutral because, while Gucci and Guess not target the same market, distorted Gucci "intent" customer results, (2) that there is no apparent significant difference in Quality Gucci and Guess products, and (3) neither party will be furnished the sophistication of the consumer and thus the factor favoring eighth rate.

The judge began his analysis of the make and model Quattro G by saying that many designer houses such as Fendi, Coach, Louis Vuitton, is having an all-over logo pattern on many of their profiteering from initials of the brand. This meant that, because Gucci and Guess coincidentally the same initial "G", each using a basic model with initial each company was required to associate a certain resemblance.

In much of the analysis, the judge ruled that the marks visually dissimilar, because, as the diamond / square was in the corners of the form (double-locking "G" 's, anchored only to "G" s) and because Gucci design featured dual link only "G" s in the corners of the square / diamond, while featuring Guess either a single "G" or four interconnection "G" s in the middle of the square / diamond patters but visually similar because both parties the letter "G" and a diamond pattern with dots or lines between the corners. Moreover, the use of the model in brown / beige, linen background also made on two-color is visually similar. Copy weighing the remaining Polaroid factors, including the intention Guess the saying "GG" pattern and plaid pattern, the judge found a likelihood of confusion, if in brown / beige used, but not when rates of employees other colors.

The judge prevented a complete analysis Poloroid GRG for the band, noting that since the band patterns are "" basics "that each group be able to use, free to compete, must" Guess what, just the Gucci brand GRG injured when he used those colors in that pattern.

The stylized "G" was considered a weak brand, and was confusing to have a stylized G, which was very similar to Gucci "G" on two of its shoe models used rates.

Finally, the "script" tag does not cause confusion, especially because the brand of the company set another word.

The demand for dilution, the judge said the use of Guess Quattro G-model in the color brown / beige and the use of band-GRG Gucci brand dilution by blurring.

In addition to analysis of Judge of the confusion and dilution problems, which was also tainted by Gucci by their general behavior.

First, the processing activities Gucci Guess totally incompatible with the way they treated other infringers. In particular, the judge said that "Over the years, Gucci has hundreds of truce and sent letters to give to companies ranging from national companies such as Bebe, Juicy Couture, and Williams-Sonoma, all the way to the short week, such as a forger forger working from his home in Los Angeles and a rabbi in New York, believed they could sell fake Gucci products for the benefit of his synagogue. "Otherwise was not Gucci send a letter to guess cease and desist, as he discovered the alleged violations and chose not to bring this example, because former Gucci was engaged in "combat" against counterfeiters and therefore concerns "budget".

The judge had concluded that Gucci for several years, were with the marks at issue rates known. In particular, Guess loaded items displayed Featured Brands in his shop window, and the products sold are managed with the marks and drawings on his own Web site and by third parties. In addition, Gucci announced a special monitoring Guess advertising, including those marks. Based on these facts, the judge denied the claims of the witnesses Gucci, despite these surveillance practices, they had no knowledge of the possible violation, not to be credible.

Second, it will not prove non-speculative damages Gucci in the current form of lost sales or damage to the brand value. The failure of Gucci, has to meet the burden of proof on this issue, a large amount of damages she sought eliminated.

Gucci behavior in relation to the threat Guess brand and the merits of the claims of general and combined to give a victory is very narrow and shallow for Gucci Guess. Maybe the judge's opinion of the case was summed up perfectly in his conclusion. "Oscar Wilde," she writes, "to right as [fashion]," a form of ugliness so intolerable that we have to change every six months. "With the instant dispute now resolved ... it is my hope that this ugliness will be on the floor of the runway and shopping, rather than flow limited in the courts."