Is Margiela Purposely Playing with Burberry’s Fire?

Burberry is well known for fiercely protecting its Brand. No later than last year, the company filed a lawsuit against the rapper and producer Perry Noise, Aka “Burberry Perry.” Noise was not only using the protected word mark “Burberry”, but also the federally registered check pattern and equestrian trademark in connection with his album, online marketing and social media pages. After few months of legal battles with the Fashion giant, Noise publicly gave up to Burberry and stopped using anything related to the brand.

Despite, this recent matter, it’s fearlessly that John Galliano (Martin Margiela’s creative director) opened his 2017 Autumn/Winter collection with an intriguing fashion piece, an harmoniously unstructured coat that leaves you a taste of “Déjà vu”…

A beige trench coat with cut outs in which were incorporated Burberry famed checkered designs…

Yes. A Burberry designs, to open a Margiela show. As it wasn’t enough, Galliano didn’t choose to work with any Burberry’s garment. He actually chose the most iconic product of the British Brand… The legendary Burberry Trench Coat.

This bold Fashion statement undertaken by Galliano raises a very simple but nonetheless major interrogation: Is this legal?

For the time being neither brands have commented the matter, therefore, we shall consider three case scenarios to answer this delicate question:

  • Counterfeiting?

Counterfeiting occurs when someone copies or imitates a protected product without authorization.

A quick analyze at the Margiela’s collection is sufficient to push aside this theory.  Each one of the 31 looks presented has a voluntary “second hands style”. The discussed coat appears to be a veritable Burberry. Galliano doesn’t try to hide it; on the contrary, he’s playing with it, adding the “Margiela’s touch” to it.  Few scissors cuts, few sewing here and there and “Voila”.

  • Trademark Infringement?

Occurs when there is an unauthorized use of a protected mark on or in connection with goods (or services) in a manner that is likely to cause confusion about the source of the goods.

Two options in this case:

  1. If the coat was exclusively designed to open the show but won’t be available on sale; there is no likelihood of confusion regarding the origin of the coat. In other words, there is no reasonable cause to think that Margiela isn’t the creator of this product itf it is display on a Martin Margiela’s runway show!

Consequently, if there is no likelihood of confusion, there is no sustainable claim for trademark infringement.

  1. If the Belgium brand decides to sell the coat, things get more complicated since consumers might be confused about the origin of the coat. If you didn’t see the show, would you be able to differentiate this coat from a Burberry one?

Well, if the coat is exclusively sold in Margiela’s Stores, a consumer will surely know he’s buying Margiela, however the “Post sale confusion” might still apply. You’re walking on the street and see the coat? Would you be confused about the origin of it? Probably…

An even more dangerous situation for Margiela would be to sell the coat in store such as Macy’s, Nordstrom. Department  Stores in which you can find Burberry clothes next to Margiela ones…. Would a consumer be able to differentiate the Margiela’s Trench coat from the Burberry ones ?

As of now, the collection can be seen on Margiela’s website where the coat is described as “Stone-coloured trench coat with beige check lining, cut away at the back. Worn with white pumps.”

However, Martin Margiela’s online store doesn’t sell the collection (yet?). We will have to be patient to find out if they will cross this risky line.

  • Dilution?

The Federal Trademark Dilution Act of 1995 protects famous Trademark from uses that would dilute their distinctiveness and it doesn’t require proving a likelihood of confusion.

Burberry obviously meets the criteria to be protected against dilution. It’s one of the world’s most famous trademarks.

The question is: did Martin Margiela willfully intended to trade on the British brand reputation or to dilute it?

It would be easily admitted if we were dealing with an unknown brand, using questionable quality to create their clothes. It’s the exact opposite; Margiela is a world Famous Couture Brand a major influence in the Fashion and Luxury industry and this is what makes the issue of this matter so uncertain and interesting.

© 2017 Olfa B’Chir