Gucci v. Guess, Marc Fisher Trial Ends

The courthouse in downtown Manhattan was packed Thursday during the closing arguments in the Gucci America Inc. vs. Guess Inc. et al lawsuit.
The defendants, comprising Guess and its licensees — Marc Fisher Footwear for footwear and Signal Products Inc. for handbags — kicked off proceedings, and each side had 30 minutes to an hour to sum up their cases. Gucci rested its case in about an hour during the court’s afternoon session.
In his summary, Gucci attorney Louis Ederer said actions over the years by these three companies amounted to “the perfect storm of copyright infringement.”
Ederer alleged the firms acted in a way that would confuse customers, with handbags and footwear bearing logos with Gs in a diamond pattern. He said the firms had “a common enterprise [to] get whatever we can from [Gucci], but do it in a clever way so we don’t get caught. It’s all infringing and it’s all willful.”
Marc Fisher Footwear’s attorney, Darren Saunders, denied these allegations.
“There is a very simple equation we can use,” he told the court in his summary. “No similarity, plus no intent, plus no actual confusion, plus no survey equals no likelihood of confusion.”
Saunders said Marc Fisher Footwear had no intent to launch what Gucci calls a “sophisticated and elaborate scheme … to cause post-sale confusion” by making shoes bearing too much resemblance to registered Gucci trademarks, such as its green-red-green stripe and double-G diamond logo pattern.
“It is completely speculative what happens in post-sale analysis” because Gucci failed to produce a survey to demonstrate confusion is likely even though it was incumbent on them to do so, Saunders explained.

While the attorney admitted a few men’s shoe styles came too close to Gucci shoes, he also asked why 155 SKUs were named in the suit, given that Marc Fisher, founder and CEO of his namesake company, was only shown four samples when he testified.

More importantly, Saunders asked the court to consider that when Fisher was sent cease-and-desist letters, he complied immediately.
For his part, Ederer also spent part of his summary attempting to discredit witnesses called by the defense.

Referring to the testimony of Bonnie Smith, one of Marc Fisher Footwear’s expert witnesses and part-time instructor at the Fashion Institute of Design & Merchandising in Los Angeles, Ederer said, “A remarkable, can-you-top-this moment came when Smith said it was perfectly OK to copy something stitch for stitch and slap your own brand on it because it’s industry practice.”
During her testimony last week, Smith said that companies “regularly” buy shoes from retail stores, send them to factories and have them re-made with different fabrics and elements with different brand names — unless it was known the elements were protected under a registered trademark.
Part of her testimony raised the point that “only 1 percent of America” could afford luxury footwear from the likes of Jimmy Choo and Gucci, and there was no reason why the other 99 percent couldn’t benefit from similar-looking footwear at much more accessible price points.
In his closing argument on Thursday, Saunders echoed these sentiments: “In this case … Guess and Marc Fisher Footwear are in the mid-tier … and there is a legitimate need to emulate, to modify [popular brands and products in the market],” he said.

Saunders also argued that Smith “provided quite a lot of insight into how the fashion business works day to day” and also “provided welcomed levity” in the seemingly interminable courtroom proceedings.
Gucci is suing for a monetary reward of what it believes is $90 million in lost profits, as well as damages. It is also seeking to cancel Guess’ trademark registration of the “Quattro G” pattern — a pattern central to the argument of this case for being allegedly too similar to Gucci’s double-G diamond logo pattern.

Judge Shira Scheindlin said she expects to make a decision by mid-May.

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