Gucci is Ghosting and Louis is Lunging: An Examination of Disparate Luxury IP Enforcement Strategies

These days it seems that nothing is safe from millennials. The running joke is that strengthened by their addiction to avocado toast, and with all of their free time due to unemployment, millennials have started a killing spree against wholesome staples like napkins, cereal, and “Breastaurants.” I will be focusing on the replies from one of the “murder victim” industries, luxury goods. While luxury brands have seen a market increase of 4% in the beginning of 2017 (primarily due to the Chinese economy), the industry dipped last year and is acknowledging the growing need to reach out to the millennial consumer base. Two brands, Gucci and Louis Vuitton (“LV”), have responded differently to millennial culture, particularly within their IP strategy.
Brand IP strategy can be seen as a way to maintain competitive advantage through monopolistic protection of trademarks, but it is also a method of protecting brand image. Much like copyright can be used to supplant the United States’ paltry artistic moral rights, trademark law allows companies to dictate how others’ use and talk about brands, with only a few exceptions. Gucci and Louis Vuitton both employ this strategy through disparate means. Louis Vuitton is one of the most aggressive brand protectors in the industry. They gifted us a seminal parody case in trademark law due to their stiff upper lip, Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC. In this case, Louis Vuitton sued dog toy manufacturer Haute Diggity Dog for their “Chewy Vuitton” line of toys, mimicking Louis’ purses. The court ruled it a parody, due to the toy brands’ commentary on the absurdity of the fashion industry, which was a major win for parodists and cemented LV as someone who “cannot take a joke.”
In recent years LV has been steadily hypervigilant in its pursuit against alleged infringers and diluters. As the previously linked article by Bill Donahue explains, there has been a string of cases, some more successful than others, in which LV has sued for an appropriation of their famous monogram. In 2012, the brand sued Warner Brothers for the use of a fake LV bag in “The Hangover Part II,” which was dismissed under the Rogers test championing the First Amendment. LV was more successful in 2008, when it sued Sony for featuring the monogram on a dashboard of a pink Hummer in Britney Spears’ “Do Something” video. They also succeeded in their suit against Hyundai over a Super Bowl ad which featured the print on a basketball. Most recently, in the case that provoked the judge to make the “cannot take a joke comment,” LV sued canvas tote company “My Other Bag…” that used images of famous bags printed on cheap shopping totes, which the company now calls a parody (no doubt due to risk-averse lawyer demands.)
Donahue ends his article with a discussion on trademark strategy as a decision about prioritization and hypervigilance, particularly whether or not brands are losing a sense of proportionality.  This may be true, but I see this trend as less about general strategy and more about the specific retaliation of luxury against mass culture, particularly millennial mass culture. Most of the aforementioned adversary parties are accessible to the millennial consumer base (though millennials are killing cars so maybe Hyundai is out of luck). These are all parties, Britney included, that have consistently appealed themselves to the current mass culture generation. Much like when Cristal champagne tried to distance itself from the hip hop community, or more recently when Burberry and Rolls Royce sued rappers for using their trademarks within their names and album artwork, LV is perhaps trying to distance itself from what it perceives as low culture.[1] This hypothesis is all the more supported by the fact that most of these suits contained dilution by tarnishment charges.
Conspicuously absent from the list of lawsuits is one against the rapper Gucci Mane. And while some fashion law blogs are anxiously anticipating the potential lawsuit, Mr. Mane’s name appears to be safe. In fact, Gucci generally has been comparatively quiet on the trademark lawsuit front. This year, they are the defendant in a declaratory judgment brought by Forever 21, in which Gucci is now a counterclaimant on grounds that the fast fashion retailer is infringing and diluting their signature green and red stripes. One may argue that this is a rebuke of a cheap millennial beloved retailer, however, the answer to the complaint only mentions tarnishment once, so it is most plausibly just a case of infringement. Gucci does of course care about the traditional trademark monopoly view in their IP strategy. Most famously, they sued Guess over the use of their Quattro G design, a suit that Gucci won, though on the likelihood of confusion as opposed to dilution claims.
Instead of railing against millennial culture, it appears that Gucci is trying to embrace, if not co-opt it. Gucci is inviting artists and Instagram influencers to collaborate on both promotion, as well as design. Most famous is their collaboration with skateboarder/Gucci-collector turned street-artist, GucciGhost. He rose to fame reinterpreting the Gucci logo into street art, but instead of suing him for infringement, Gucci brought him in to help design a new collection. Gucci’s creative director, Alessandro Michele, has proactively sought out artists in Internet Culture and developed the idea of “new romance,” a combination of high and low, vintage and new.  Not all of their forays into millennial culture have been met with such aplomb. They are running an artist-generated meme campaign surrounding their luxury watches to, in Michele’s words, “engage with a wider creative community than that which traditionally locates around the world of fashion.”  Although on its surface it may be an interesting attempt to democratize the luxury fashion industry, some say it’s not worth the cringe. Outside of criticism, Gucci’s campaigns seem to be working. Anecdotally, their success is apparent through the ubiquity of the Princetown slide, but factually Gucci has had a 43.4% increase in comparable revenue for the first half of 2017, with 50% of all sales to customers aged 35 and under.
It is unclear whose strategy is better, LV’s or Gucci’s, for long-term growth. Both companies are currently doing well financially, though it is possible that Gucci is cementing its status as a trend and soon oversaturation will occur. After all, LV is part of the “holy trinity” of handbag brands (the other two Chanel and Hermès), and that does not appear to be changing any time soon. Perhaps LV is actually protecting its status as a classic by distancing itself from the millennial consumer market and pursuing trademark appropriators aggressively. Despite what their penchant for tarnishment claims and overly belligerent litigation may tell us, it is still clear that they are feeling some squeeze. LV is famous for their innovative collaborations, the most recent of which is with hype-beast millennial brand Supreme.
[1] Neither rapper mentioned in these suits decided to appear in court. The artist FKA Burberry Perry changed his name to TG Perry and Rolls Royce Rizzy also decided to change his name to Royce Rizzy. It is unfortunately unclear if these artists would have won the lawsuit, though the explicit nature of several songs on Rizzy’s album were mentioned in court arguments.
 
 
Evelina Yarmit is a J.D. candidate, 2019, at NYU School of Law.