Of Sneaker Pimps and the President…

No, the first portion of the title of this post does not refer to the band the Sneakers Pimps, but rather the clothing retailer Forever 21, which just narrowly avoided getting legally scratched up by Puma over its copycat shoe designs. And yes, the second part of the title is referring to the President, our copyright infringer-in-chief, whose latest copyright-related incident involves another photo carelessly posted to a campaign social media account.

Puma's Second Injunction Request Fails

On April 11, 2017, Puma filed a lawsuit against Forever 21 alleging copyright infringement, trade dress infringement, design patent infringement, and unfair competition over its “Fenty” line of shoes, which were designed with the help of pop star Rihanna, and include sneakers as well as Puma’s “Fur Slide” and “Bow Slide” sandals. Puma immediately tried to get a temporary restraining order stopping Forever 21 from selling its version of the shoes, but was unsuccessful.

Puma then sought a preliminary injunction, which requires a plaintiff to show that it will suffer "irreparable harm" if the injunction is not granted and the defendant is allowed to continue with its allegedly infringing behavior. A preliminary injunction also has three other factors that courts must consider, but in its opinion the Court found Puma's evidence of irreparable harm so underwhelming that it did not even discuss the other three factors.

Puma's only evidence of irreparable harm was a declaration from its Global Director of Brand and Marketing, who stated that Forever 21’s “fast fashion” knock-off products harm brands like Puma's by decreasing sales volume, and ultimately diminishing their brand. In response, the Court said that a plaintiff "cannot merely produce evidence of unsupported and conclusory statements regarding harm [plaintiff] might suffer.” According to the Court, additional evidence demonstrating consumers’ perceptions of a weakening of Puma's brand caused by Forever 21's knock-offs would have helped, as well as evidence that Puma had lost or was likely to lose customers and goodwill from Forever 21’s shoes.

Posting Campaign Rally Photo to Instagram = Infringement, Says Photographer

Photographer Julie Dermansky took a photo at a Trump rally during the 2016 campaign, which the Trump Organization (referred to as "TO" in the complaint) later posted to its Instagram account. Dermansky's complaint for copyright infringement alleges that the posting of the photo is an "unauthorized reproduction and public display of a copyrighted photograph of a Donald Trump rally" for which the Trump Organization was never "licensed or otherwise authorized to reproduce, publicly display, distribute and/or use."

This case comes less than a year after another Trump Organization post, which used a picture of Skittles, resulted in a copyright infringement suit. Clearly, someone needs to have a talk with Trump's staff (or the Prez himself, given his penchant for handling his own social media accounts) about what a copyright is.

Photo by Brooke Fishwick [CC BY-SA 3.0 or GFDL], via Wikimedia Commons.

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