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The Intellectual Property StrategistFeaturesIntellectual PropertyPatent Licensing and TransactionsPatent Litigation

Non-Traditional Trademarks: The Elusiveness of Branding a Trend

By Olivera Medenica

Earlier this year, fashion brand Steven Madden, Ltd. filed a declaratory judgment action against Jasmin Larian, LLC in a trademark dispute involving the latter's Cult Gaia “Ark” bag, a structured handbag made of interlocking rigid strips arranged in a half-moon shape. The dispute arose after Larian's counsel had sent a cease and desist correspondence to Madden requesting that it cease and desist from the marketing and sale of Madden's virtually identical “BShipper” bag. In its papers, Madden seeks a declaration that the “Ark” design is generic and not protectable because it “slavishly copies the traditional Japanese bamboo picnic bag design … from the 1940s.”

Last year, Forever 21, Inc. also filed a declaratory judgment action after its receipt of several cease and desist correspondences from Gucci America, Inc. In its letters, Gucci accused Forever 21 of selling products bearing Gucci's blue-red-blue and green-red-green stripes for which it owns several trademarks for different categories of goods.

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