Fisher Witness: Copying is Industry-Accepted Practice

An expert witness called to the stand by Marc Fisher Footwear provided some courtroom relief late Thursday at the continuation of Gucci America Inc. vs. Guess Inc. et al.

Bonnie Smith, part-time instructor at the FIDM/Fashion Institute of Design & Merchandising in Los Angeles, testified in downtown Manhattan that “it is an industry-accepted practice” to buy shoes from retail stores and send them to factories and have them re-made with different fabrics and elements with different brand names.

She also said such practice occurs “absolutely regularly.”
Gucci is suing Guess for $221 million, alleging that the high-street fashion brand infringed on a number of its registered trademarks, thereby diluting its brand and causing confusion with customers.

Defendants include Guess licensees Marc Fisher Footwear and Signal Products Inc. According to its complaint, originally filed in May 2009, Gucci said, “Defendants have chosen to target Gucci by knowingly and slavishly replicating Gucci’s world-famous design elements and designations, so that they can take advantage of the markets and demand Gucci has created for such designs.”

In her testimony, Smith addressed the issue by explaining that the Gucci shoe customer is not the Guess shoe customer.

She said, “Those two women will never meet. The only women in this country who can buy Gucci now [are buying styles with the logo jacquard in very simple silhouettes]. Guess didn’t hurt Gucci; Gucci hurt Gucci.”

As the court chuckled and Gucci attorney Louis Ederer brought his hand to his forehead, Judge Shira Scheindlin remarked, “Aren’t you glad you asked, Mr. Ederer?”

Smith continued, “For want of a better word, yes, we ‘copy,’ we duplicate, we fool around with [original versions]. … It’s all because a retailer wants it. … [But] it’s really hard to make shoes identical, and I don’t think anyone really tries to do that.”

Smith also denied, as Marc Fisher had a day earlier, that the Guess Melrose sneaker bore similarities to a Gucci sneaker with a diamond logo motif and a green-red-green stripe pattern on the side.

“It’s a different construction,” said Smith, who was also a full-time shoe designer from the mid-1960s to the mid-1990s. “The fabric is different, the lacing is different, the rectangles of the Gs are different.”

When Ederer tried to show Smith the Gucci sneaker that Gucci alleged Marc Fisher Footwear “knocked off,” Smith exclaimed, “That’s an Adidas shoe, except that Gucci made it,” pointing to design elements on the shoe’s toe, heel, overlay and side stripe design.

More chuckling ensued.

The day ended in a dramatic twist when Darren Saunders, Marc Fisher Footwear’s attorney, showed Smith samples of a Vans shoe, an Adidas Stan Smith shoe and a Sperry Top-Sider shoe — all shoes Smith described to the court as “iconic.”

Saunders then produced three more that appeared similar to the first three and asked Smith to identify them.

“These are all Gucci shoes,” the witness said.

The trial is expected to end next week, and Judge Scheindlin said she expects to make a decision by mid-May.

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