Professor Susan Scafidi, founder and academic director of Fordham University School of Law’s Fashion Law Institute, was consulted for a Bloomberg Law article about a copyright infringement lawsuit being launched against the NBA.
Coogi Partners LLC’s complaint “is replete with dubious theories that in some way seek to articulate a cognizable claim against the Brooklyn Nets’-branded products that contain the ‘Brooklyn Camo’ pattern,” NBA Properties, Brooklyn Nets LLC, and other defendants said in a May 15 memorandum supporting a motion to dismiss.
The plaintiff claims the NBA and others infringed its copyrighted designs by using a multicolored pattern on Brooklyn Nets jerseys and merchandise. Coogi alleged the designs are a brand signature for its entire catalog, and that it’s entitled to a protection known as trade dress.
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Susan Scafidi, professor, founder and academic director of Fordham University School of Law’s Fashion Law institute, said the defendants are trying to make the case that Coogi’s trade dress is “too vague, general and inchoate for consumers to recognize.”Trade dress traditionally applies to things such as McDonald’s uniforms and Coca-Cola bottles, and it typically requires companies to have a significant amount of market penetration. Clothing companies have managed to secure trade dress, such as K-Swiss for its shoe designs.
Coogi’s bid, if successful, would be “an expansion of trade dress, because it would really focus not on a particular element that you could describe verbally with with specificity, but more on the recognition of an overall signature,” Scafidi said.
“What Coogi is saying is its patterns are distinctive enough that they constitute trade dress. It’s a bold new argument,” she said, though noted the case is “not a slam dunk for either side.”