Misappropriation and Right of Publicity: A Case Study of Ellen Degeneres Clean Clothes Company and Joseph A Bank Clothing Store

Celebrity Endorsement is a form of brand or advertising that involves a well-known individual using their fame to help promote a product or service. The most common business users of products are manufactures of perfumes, and clothing. Some Techniques that are used are for example, television ads and launch event appearances.

In the essay “A Language All Their Own,” Nathan Salha (2011) claimed that trademarks should be used “only to protect intellectual invention and the reputations of associated companies,” and Salha wrote that trademarked slogans only exist to regulate the usage of creative slogans among businesses and that they do not limit the freedom of speech (p. 476). Furthermore, Salha (2011) argued that trademarked slogans protect businesses and promote competition by allowing each business to customize its advertisements and distinguish its product from the products of its competitors with clever slogans (p. 477). Moreover, Salha (2011) asserted that trademarked slogans protect consumers by allowing consumers to distinguish high-quality products, which

One of Lululemon’s ethical issues that it is currently practiced is that Lululemon encourages employees to ease drop on its customers to gain more knowledge on the current complaints/defects with its products. This practice was introduced to the company because Lululemon is known for wanting to avoid collecting large amounts of customer data through large data techniques. Rather, the company aims to have a close and open relationship with its customers. Lululemon would rather connect with its customers while they are shopping in the store or in its company offered yoga lessons after the store closes rather than collecting data. The company was founded on the mission of “creating components for people to live longer, healthier, fun lives” this philosophy led to Lululemon seven core values: quality, product, integrity, balance, entrepreneurship, fun, and greatness. In this case, the implicated values that have arisen are integrity, quality, and greatness. As a company, Lululemon values greatness as a key value in how the company functions, they do this by always striving to have the best quality products and to be the greatest company. However, another key value is integrity which it encourages its employees to have the quality of being honest and having strong moral principles. The implication of having employees ease drop on its customers in order to gain feedback on the company’s product violates its value of integrity.

The root cause in the Abercrombie and Fitch case was the company’s practice was to focus their recruiting and hiring of a sales persons around their image, which was around the mantra of “an all American Classic look” and they shied away from individuals that did not fit that mold. Due to this behavior, the company was hit with a lawsuit in 2003 that alleged they violated Title VII of the Civil Rights Act of 1964 by placing a targeted focus on their recruiting and hiring that essentially excluded or limited its minority and female workforce population (Wikipedia, 2017).

A motion for summary judgment is granted when the similarities concern only non-copyrightable elements of an allegedly infringed work or when no reasonable trier of fact could find the works substantially similar. Boisson v. Banian, Ltd., 273 F.3d 273 (2d Cir. 2001); Castle Rock Entm 't, Inc. v. Carol Publ 'g Grp., Inc., 150 F.3d 132 (2d Cir. 1998); Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996); Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir 1986). When the works contain protectable and unprotectable elements, the court applies a more discerning test, extracting the unprotectable elements from the works and asking whether the protectable elements, standing alone, are substantially similar. Knitwaves Inc. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) The discerning ordinary observer test must be applied in conjunction with the total concept and feel after the unprotectable elements are eliminated from consideration. Boisson, 273 F.3d 273. An allegedly infringing work is considered substantially similar to a copyrighted work if the ordinary lay observer unless he set out to detect the disparities, would regard the two works appeal as the same. Boisson 273 F.3d 273; Knitwaves, 71 F.3d 996. In determining whether or not the allegedly infringing work falls below the quantitative

The second approach to copyright is the democratic approach. All works of art are ideas built on a foundation of other ideas. The democratic approach advocates that intellectual property belongs to the society and should be available for the general good of the public. If the particular usage is intended to derive financial benefit or any other business-related benefits, it is considered inappropriate usage. If the utilization of factual work were more usable than the use of someone’s creative work, then that would not be fair use. There is no specified edge to the amount of quoted work that can be called “fair use.” The courts exercise common sense to determine if it was too much. If the utilization of the material created market or stirred a competition, and if the fair use diminishes demand for the original product, it is not considered as appropriate use (Crews, 1993).

On May 30, 2000 The Calvin Klein family filed a lawsuit against Warnaco Group Inc for eighteen counts of trademark infringement, trademark dilution and intentional misrepresentation. Nearly a month later Warnaco answered with a counter suit, denying the major allegations and justifying the dilution to falling within the scope of the two parities licensing agreement. The case study brings forth information regarding fashion retailing, distribution practices and even the licensing practices expected within the marketplace, however as a reader one should keep in mind that during the millennium “licensing

During fair use trials judges are supposed to at least these “four factors” 1. The purpose of the use 2. The nature of the work used 3. The amount and sustainability of the original work used 4. The effect on the market of the original, as well as the overall purposes of copyright law.

The Lanham Act defines the term trademark to include “any word, name, symbol, or device, or any combination thereof . . . to identify and distinguish his or her goods . . . and to indicate the source of the goods, even if that source is unknown.” The United States Patent and Trademark Office and the U.S. federal courts have interpreted the definition liberally allowing a breath of nontraditional marks to be registered if it.

Copyright protection does not extend to scenes a faire, which are stock themes commonly linked to a particular genre or characteristics that appear in a work of

The use of No. 13 in Chapels mark was its distinguishing factor; in adopting this unique number with reference to ‘clothing’ i.e. ‘apparel’ the marks were used in the same context. This leads to the consideration of whether the goods are competing goods; this is a tricky argument and as per the stated facts could swing both ways, the plaintiff’s does not make dresses for animals, thus, it does not compete directly with the defendant’s product, the defendant could also assert that the plaintiff’s stance on animal clothing would further emphasize in difference in market, and their stance against animal clothing may not be known to its customers or the public unless their requests were directly rejected by Chapel. On other hand, the use of the mark Petpel No. 13 does not seem to convey the message that Chapel is not the source of the goods. The press release by the CEO stating that, it was making fun of the fashion industry was not sufficient and so it may be held that the defendant has not separated it from the plaintiff’s mark and goods. These factors combined argue in favor of likelihood of confusion. Consumer surveys are “useful evidence of the likelihood of confusion,” but “are not required for such a determination.” Anheuser-Busch, Inc. v. VIP Products, LLC, 666 F. Supp. 2d 974, 983 (E.D. Mo. 2008). Likelihood of confusion is not required under dilution, however, the presence of confusion effectively disproves a successful parody (Louis Vuitton v Haute Diggity Dog, LLC, 507 F.3d 252, 259 (4th Cir. 2007)), thus arguing confusion would strengthen Chapel’s argument against parody. The likelihood of confusion is further demonstrated by the survey results, which state that 15% were confused and 60% thought it was a parody. The question arises if it is sufficient if 15% of customers were confused; the percentage of confused people is definitely not minimal.

A great example of a ethical decision Macy’s has made is initiating The Company’s Compliance and Ethics program to promote ethical conduct and guarantee compliance with Company policies and applicable laws. To ensure the company is making moral decisions, The Company’s Compliance and Ethics program consists of “(i) the Compliance and Ethics Executive Committee, whose members are the Company’s Chief Legal Officer, Controller, VP of Internal Audit and Chief Compliance and Ethics Executive, and (ii) the Office of Compliance and Ethics, which is managed by the Chief Compliance and Ethics Executive who reports to the Chief Legal Officer. Macy’s strives to have a core value of their business, which is“Integrity Always”. According to Macy’s online

Fair Use is considered the "grand daddy" of copyrights clauses. Fair use allows people to use the work of other if they are using the work for criticism, news reporting, scholarship, comment, teaching, research, and teaching, each has its limitations. There are four identifiers used to determine if use of a copyrighted work is considered fair use (Yearneau,2010; Jamar, 2013; Goldman, 2014; Grimmelmann, 2014; Kankanala,

Yves St. Laurent has been using our red soles for heels we are suing for infringement. A trademark is a symbol, word, or brand that registered or established by use of representing a company or product in the case of Louboutin v. Yves St. Laurent, the trademark for Louboutin is red which in this case the soles on the heels of Louboutin’s are monochromatic to only that color. Infringement is the action of breaking/violating the terms of the law or an agreement, infringement could also be described as plagiarism. Plagiarism is stealing someone else’s work and passing it off as their own work, and Yves St. Laurent has been using our trademark and putting red soles on the bottom of their women’s heels. Christian

"The naming of the product, service or company is called branding. A brand or name is the label that consumers associate with your product. For this reason, a brand or name should help communicate the product's positioning and its inherent drama for the consumer" (Roman G. Hiebing Jr and Scott W. Cooper; The successful marketing plan, a disciplined and comprehensive approach; 2003).