Can you tell these designs apart?
Tory Burch is the designer and creator behind the iconic “T over T” design that marks handbags, shoes, jewelry, clothing, and other fashion and fragrance products. The first TT trademark was registered with the Patent Trademark Office in 2005. Since then, Tory Burch has at least 10 other registered trademarks, all a variation of the TT design. By 2014, Tory Burch (Tory Burch LLC/River Light V, LP) will post 1 Billion in annual revenues. The brand is wildly popular, instantly recognizable, and ubiquitous. It is no surprise, given the popularly and demand of the TT brand, that fakes will invade the marketplace.
Back to the images. Which one is the authentic Tory and which one is not?
How about these:
Tory Burch is the designer and creator behind the iconic “T over T” design that marks handbags, shoes, jewelry, clothing, and other fashion and fragrance products. The first TT trademark was registered with the Patent Trademark Office in 2005. Since then, Tory Burch has at least 10 other registered trademarks, all a variation of the TT design. By 2014, Tory Burch (Tory Burch LLC/River Light V, LP) will post 1 Billion in annual revenues. The brand is wildly popular, instantly recognizable, and ubiquitous. It is no surprise, given the popularly and demand of the TT brand, that fakes will invade the marketplace.
Back to the images. Which one is the authentic Tory and which one is not?
How about these:
The images on the right are products manufactured, marketed, and sold by Lin & J International, Inc. On the photo at the top, the authentic Tory is pictured on the left. To my eye, there is no doubt that these are basic rip offs of the TT mark. And, there was no doubt to a NY Federal Court Judge either. Tory Burch sued Lin & J and won 38.9 million in damages (plus 2.3M in attorney fees, more about that later). The Judge determined that Lin & J had infringed on the TT trademarks as well as counterfeited their products. Since 2012, about 1.5 million counterfeited pieces have been introduced into the marketplace by Lin & J retailing in the $10-$30 range per item. ($30 x 1.5M = $45M).
What was interesting to me was the incredible bad faith on the part of the Defendant Lin & J (hereinafter shortened to “Lin”) and on the part of the Defendant’s lawyer. The misconduct on the part of Lin was so egregious that the court struck their defenses making the Tory motion unopposed. This is extraordinary. But then so was the misconduct. First, there was the actual trademark infringement. Then there was the coverup.
Almost immediately after Lin became aware that Tory was seeking invoice information from vendors who had purchased the counterfeited goods, Lin sought to trademark the mark they called an “Isis Cross.” (The reason for seeking vendor invoices was to determine how Lin characterized the items sold [which, tellingly, were identified as “Tory Burch inspired” or “Tory Burch”], along with the date the items were sold). After being sued by Tory, Lin continued to manufacture, market, and sell the goods with the TT lookalike mark. Lin created a set of LookBooks displaying their “Isis Cross” and falsely represented that these books were evidence of their logo being in the marketplace before the trademarking of the 2005 Tory logo. Lin’s lawyers reiterated the false representations to the Court. Lin and counsel countersued Tory and accused Tory of infringing on its Isis Cross using the made up LookBooks as evidence their logo had been in existence since before Tory’s first trademark. Also, after Lin’s trademark registration claim was denied, they falsified documents resubmitted to the PTO. That's a hella lot of deceit right there. And they kept it up.
Despite arguing that the Isis Cross was in existence in the marketplace before 2005, Lin produced only 3 invoices for the sale of an Isis Cross product for the years 2005-2013 so the Court ordered a computer forensic examination of Lin’s computers. The analysis revealed modifications and manipulations of crucial data, some “revisions” occurring the day before the computer examination was scheduled.
After the discovery of the falsifications & misrepresentations, lawyers for Tory filed Motions for Sanctions against Lin. Only then did Lin drop its counterclaim against Tory Burch. Thereafter, at the time of the deadline for filing a response to Tory’s Summary Judgment Motion, Lin’s lawyer said his computer had crashed over the weekend. It was agreed that Lin’s lawyer would have two extra days to file his response. The extended deadline was missed. However, Lin’s lawyer told the Court he had sent the response when he had not actually done so. Operating under the belief that a good defense is loud indignation, Lin’s lawyer maintained his false story and chastised Tory’s lawyers for making “outrageous and baseless accusations.” The Court ordered a computer forensic examination of Lin’s lawyer’s computer and the lawyer finally acknowledged his misrepresentations. Despite all of the underhanded shenanigans by Lin and counsel, the Court permitted Lin’s counsel to submit responsive documents so long as the response did not use any of the falsified evidence as part of its argument. Not cowed by being caught red-handed lying to the Court, the response contained arguments using the fake evidence as a basis for its claims so the Court struck the response and left Lin defenseless.
To me, the actual damages and attorney fee award seems just given the blatant misconduct by Lin and its frivolous counterclaim – not to mention the pure copycatting of the Tory Burch TT Logo.
Now that C Wonder has been reacquired with plans to launch on QVC in spring 2016, it’ll be interesting to see how that brand reinvents itself and positions itself as a competitor of the Tory brand.
What was interesting to me was the incredible bad faith on the part of the Defendant Lin & J (hereinafter shortened to “Lin”) and on the part of the Defendant’s lawyer. The misconduct on the part of Lin was so egregious that the court struck their defenses making the Tory motion unopposed. This is extraordinary. But then so was the misconduct. First, there was the actual trademark infringement. Then there was the coverup.
Almost immediately after Lin became aware that Tory was seeking invoice information from vendors who had purchased the counterfeited goods, Lin sought to trademark the mark they called an “Isis Cross.” (The reason for seeking vendor invoices was to determine how Lin characterized the items sold [which, tellingly, were identified as “Tory Burch inspired” or “Tory Burch”], along with the date the items were sold). After being sued by Tory, Lin continued to manufacture, market, and sell the goods with the TT lookalike mark. Lin created a set of LookBooks displaying their “Isis Cross” and falsely represented that these books were evidence of their logo being in the marketplace before the trademarking of the 2005 Tory logo. Lin’s lawyers reiterated the false representations to the Court. Lin and counsel countersued Tory and accused Tory of infringing on its Isis Cross using the made up LookBooks as evidence their logo had been in existence since before Tory’s first trademark. Also, after Lin’s trademark registration claim was denied, they falsified documents resubmitted to the PTO. That's a hella lot of deceit right there. And they kept it up.
Despite arguing that the Isis Cross was in existence in the marketplace before 2005, Lin produced only 3 invoices for the sale of an Isis Cross product for the years 2005-2013 so the Court ordered a computer forensic examination of Lin’s computers. The analysis revealed modifications and manipulations of crucial data, some “revisions” occurring the day before the computer examination was scheduled.
After the discovery of the falsifications & misrepresentations, lawyers for Tory filed Motions for Sanctions against Lin. Only then did Lin drop its counterclaim against Tory Burch. Thereafter, at the time of the deadline for filing a response to Tory’s Summary Judgment Motion, Lin’s lawyer said his computer had crashed over the weekend. It was agreed that Lin’s lawyer would have two extra days to file his response. The extended deadline was missed. However, Lin’s lawyer told the Court he had sent the response when he had not actually done so. Operating under the belief that a good defense is loud indignation, Lin’s lawyer maintained his false story and chastised Tory’s lawyers for making “outrageous and baseless accusations.” The Court ordered a computer forensic examination of Lin’s lawyer’s computer and the lawyer finally acknowledged his misrepresentations. Despite all of the underhanded shenanigans by Lin and counsel, the Court permitted Lin’s counsel to submit responsive documents so long as the response did not use any of the falsified evidence as part of its argument. Not cowed by being caught red-handed lying to the Court, the response contained arguments using the fake evidence as a basis for its claims so the Court struck the response and left Lin defenseless.
To me, the actual damages and attorney fee award seems just given the blatant misconduct by Lin and its frivolous counterclaim – not to mention the pure copycatting of the Tory Burch TT Logo.
Now that C Wonder has been reacquired with plans to launch on QVC in spring 2016, it’ll be interesting to see how that brand reinvents itself and positions itself as a competitor of the Tory brand.