Engelberg Center Live!

Fake Symposium: Fake Goods and the Problem of Authenticity

Episode Summary

Today's episode is the Fake Goods and the Problem with Authenticity panel from the Fake Symposium. It was recorded on September 22, 2022.

Episode Notes

- Christine Haight Farley, American University Washington College of Law

- Sari Mazzurco, Yale Law School

- Mark McKenna, UCLA School of Law 

- Julie Zerbo, The Fashion Law

- Christopher Sprigman, NYU School of Law and Engelberg Center on Innovation Law & Policy (moderator)

Episode Transcription

Announcer  0:00  

Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law. Today's episode is the fake goods and the problem with authenticity panel from the fake symposium. It was recorded on September 22 2022.


Christopher Sprigman  0:20  

Okay, so I just want to get right into this, we're not going to do this as presentations, we're just going to do a conversation. These are people who I think are probably best placed to answer these questions, or at least to frame them correctly. And I just want to start with the first question in my mind, which is whether in the markets for consumer goods, authenticity is framed as a measure of the inherent characteristics of the good. So is authenticity about what the good is? Or rather, is it something about something else like provenance, for example? Or is it something else like rarity, for example? So I want to take this in a couple of pieces. Mark, can you get us going by talking a bit about the first part is authenticity, a measure of the inherent characteristic was good, or something else? And then there's a related question, which is who decides? Is the decision made by consumers? Or is it essentially like an authorship question where the decision is made by some institution? And maybe sorry, you could get us please started on those questions. So Mark, please take it away. And we'll, we'll go from there.


Mark McKenna  1:28  

Well, so first, thanks for having me. Chris, I thought your comments when you were talking about feature earlier actually kind of set the table for this really well, which is, you know, I think many of the disputes that people have about whether something is authentic, or it's fake, basically take that exact set of dimensions that you're describing, which is, do we decide whether something is authentic by asking questions about the nature of the good itself? Right, do we ask about some inherent characteristics? You know, maybe GIS would be a really good example here. Right? Can we tell whether a wine is authentic just by asking people to drink it?


Christopher Sprigman  2:01  

Right? Yeah. So so just for everyone on the same page, geography, geographical indication, yeah.


Mark McKenna  2:05  

So, you know, there's this famous judgment of Paris, right, where people get, and they drink these wines. And it turns out that the fancy judges from France can't tell, right, whether the wine is produced in France or in California, and in fact, the California wines routinely win. Right? And so, you know, one sort of way of asking questions about that is to say, well, like if there are no tangible characteristics of the wine that are discernible, right, that you can actually tell the difference? is authenticity. Established, right? Or should you? Should you not care that circumstance? And of course, you know, the French wine makers say, Yeah, but there's like a sort of intangible characteristic that it has to do with its terroir, right? Where it comes from, which maybe is not reducible to anything that you can measure, like, maybe you can't taste it, maybe you can't, but it's like, it doesn't matter. It's sort of like an inherent characteristic, which is sort of like saying, is there an authoritative person or entity that in order for something to be authentic? It has to claim it right? It has to say, it comes from us. So I say, or, interestingly, I mean, that to sort of anticipate too much, but like trademark law very much takes the latter form, right, it very much takes the form of authenticity is about the nomination of source of the nomination of the the entity that creates it, so much so that, you know, the trademark owner can radically change the composition of the product. And that doesn't matter at all the doctrine, right, it's only matters, who stands behind it, we don't ask any questions about the sort of composition of the product itself. And so I think that who decides question on the trademark side is very much bound up in the entity producing it, you know, I'm doing probably have lots of these kinds of examples, but tons of stories about luxury goods companies, you know, that produce products on an on some line in China, and then they turn the lights off. And then they turn the lights right back on. And they produce exactly the same product with exactly the same characteristic exactly the same, but they're no longer authorized, right, because they're now after the production run. And we treat those like counterfeits.


Christopher Sprigman  4:06  

So sorry. Mark was talking a bit about who makes this decision before the product enters this Chamber of Commerce. So what about after product enters the stream of commerce? Does that change this question of who decides?


Sari Mazzurco  4:19  

So I think it's important to start from the foundation of trademark law, which is that it presupposes that what consumers care about is authenticity, authenticity as to source primarily. But people act in capacities outside of just being a consumer consumers care about more than just the source. And consumers use trademarks just in common language, engaging in a culture and I have a couple of images as examples I wanted to bring up.


Unknown Speaker  4:53  

Michael will queue those up


Unknown Speaker  4:56  

this Okay. Yeah, so this


Sari Mazzurco  5:05  

bag of chips, I hope you could all see it. There's a lot going on here. There are a lot of things that could be trademarks. There are a lot of questions we could ask about authenticity about what consumers should care about when they look at this product. I care that it's a chip, right? I might care that it comes from rap snacks to the extent that that says something about the quality of the chips. But do consumers care about whether this is authentically involved with Nicki Minaj? Like, what's Nicki Minaj is roll here. And we also see Barbie, do we care whether Barbie has a real affiliation with these reps, next, BBQ truffle chips? Maybe not. And what I mean to suggest with this example is, it might be time to revisit trademark laws, assumptions about consumers caring about authenticity as to source either alone, or predominantly. And that takes me to Chris's question about aftermarket goods and customization. So there's loads of sneaker art customization happening right now on what were authentic Air Jordans, authentic Air Force ones. We need not really question that those came from the maker. But there are certain uses of counterfeit shoes. But putting aside that issue of whether the underlying shoe is counterfeit, assuming it's, it was an authentic Nike shoe purchase from Nike, and then an illustrator takes it and draws meticulous images on it hand painted customized to a particular customer, or just based on whatever they want to represent on that shoe. It requires us to revisit the question of what consumers care about authenticity as to what authenticity is to the art that appears on the shoe. Does it make it not an authentic Air Jordan anymore because an artist came and drew these meticulous illustrations on it. So there, there's just so much more complexity now in terms of how people are interacting with brands on a daily basis, whether it's as consumers or as creators, that it challenges the assumptions we have about how trademark law cares about authenticity, maybe it pushes it to keep pace with with how people are actually interacting with brands now.


Christopher Sprigman  7:30  

Okay, great. So, Julie, based on what we've heard so far, what do you think are the concerns or values in the markets for consumer goods that that the concept of authenticity is supposed to respond to? So I guess I would put it this way in the world of consumer goods that we know we don't really have a scarcity problem in the old fashioned sense, right. So Birkin bags are rare, not because cow hides are rare. Birkin bags are rare, because there may were. So we don't we don't have a natural scarcity problem. We have a manufactured scarcity phenomenon. Natural scarcity is what this question of authenticity or narrowly response to. So in a world that doesn't feature natural scarcity, why are we so focused on the question of authenticity? Yeah, so


Julie Zerbo  8:22  

I agree with you on all fronts, save for maybe Himalaya, Birkins and Kelly's, we might be able to make the argument that those crocodiles are potentially rare, but they could just breed more and buy more farms, which armas is regularly doing? And I think it's fair to say yes, with with some exceptions, we're really not dealing in natural scarcity. We're not talking about, you know, semiconductors and chips and stuff like that. We're talking really about manufactured scarcity. We're talking about the creation of scarcity, which is really at the heart of the narrative that luxury brands are so dependent on what their luxury positioning is dependent on what their pricing power is dependent on. And really, it consists of a few things, you know, we're talking about creating this image of craftsmanship of exclusivity. And you know, when it comes right down to it, it's not, it's not real, even the the luxury goods that we think are are manufactured in relatively small amounts, Birkin bags, for instance, you know, there's more than a million of them in circulation. as of a few years ago, they were making 70,000 or more of them per year. And so it really is, I think, a reflection of the marketing gusto and spending that luxury brands are willing to put behind this to get consumers behind the idea that they're buying into something that is kind of, of scarce. And I think Ferraris late Chairman put it really, really well in saying, you know, we, we work really hard to balance this and we make one less car than demand requires. So the supply is just a little bit short of demand. And that I think, is, is really kind of a testament to or it's really demonstrative of the scarcity that we're talking about here. So


Christopher Sprigman  10:30  

I kind of push people to talk about this a little bit more, because that that really strikes me that demand is carefully measured, and carefully, you know, petered out where metered out, I should say, to create a bit of desire, but But obviously, not too much, because if they're making 70,000 of them a year, right, it seems like most people can have one if they can afford one. Okay, so I understand why a luxury goods company might want that and enables them to charge a higher price than if the supply were greater. Why would anyone else want that? So what interests of anyone does this particular way of thinking about authenticity serve?


Mark McKenna  11:17  

So I guess, let me start by distinguishing between authenticity and Rarity, right? So authenticity doesn't necessarily imply rarity. It could just mean they all come from a single place, even if those things are massively produced, right. And so very conventional way of talking about that in trademark terms would be to say, for lots of goods, you know, the empirical way of assessing authenticity by actually evaluating characteristics, it's like impossible for consumers to do, right. They don't know how to evaluate the quality of shoes, they just rely on the presence of the Nike mark, to give them that information. Right. It's a very sort of search costly way of talking about trademarks. What's interesting about having this conversation now, of course, is like as we move into a world, where certain kinds of authenticity might be able to be guaranteed through NF T's or something on the blockchain, that concern about consumers inability to assess authenticity is actually probably disappearing, right, at least with respect to those things. Because the authentic authenticity, authenticating information can be carried with the good, you might not need the marks to do it anymore. And so I think there was a conventional way of answering that for a long time, which is that authenticity was a way of guaranteeing something about characteristics that you couldn't directly evaluate. Interesting question is whether that still holds. So


Christine Haight Farley  12:32  

yeah, Christine, I guess I'm with you all to a point. But I think we're collapsing authenticity and authorized in a way that's a bit dangerous. Right? So I think we're talking about two things, we're talking about authorized goods, and they're claiming to be authentic. Right. And they're, they're marketing and sale of authenticity as a concept. But but they're not. But but that's not in and of itself, that doesn't make it authentic. Right. And I guess I am also a little bit skeptical of this understanding of trademark in terms of a consumer reception as indicating who the who of, you know, the, you know, where it comes from? I think that, you know, we consumers have no idea and if pressed, and it's not, I don't know, the name of the manufacturer, I mean, like, literally, it is, it is a million, you know, entities away from the who they think it is, where this good has come. And, you know, the example of that you gave of turning off the light and producing more, you know, it's it's so detached from the hoop. So I think, you know, if it if there's any value to consumers of trade of the authorized trademark, it's about the it should be about the intrinsic qualities of the goods that at least, it could come from many who's and never the same, who's but but there is some consistency in terms of that intrinsic quality, or, you know, the the composition or the method or something should be stable in order for that information, have any any purchase at all.


Mark McKenna  14:18  

I totally agree with that. Except just to remark and of course, trademark law doesn't require that stability at all. Right? But it talks


Christine Haight Farley  14:25  

about it never is never right. It never never holds their feet to the fire, but they talk about it as if that's as if that's a real mark,


Christopher Sprigman  14:33  

could you tell me a little bit more about how it pretends I just want to make sure we understand this conversation where it ends up in current law or current


Mark McKenna  14:40  

policy. So I totally agree with Christine that like, you know, in sort of, in this theoretical story that we all tell, right, the part of the what you get the information you get from a trademark is some kind of continuity goods, right. And we will talk about that as an incentive all the time. You know, you want to make sure that you're giving companies incentive to maintain consistent quality doesn't have to be high quality. Just sort of consistent over time. We all know like tons of examples of companies that radically change the composition of the product, they radically change characteristics, they might make it in a totally different place. Right. So if to use another geographical indications. Example, you might know that the story of super Tuscan wines, which are basically a break off from I think it's from the Barolos, and the reason was because they wanted to make that with a different composition of grapes. And the Barolo people were like, no, no, you can't possibly do that. Because it's essential to being a Barolo that it had this mixture of grapes, right? Fast forward 20 or 30 years, it turns out that the role of people adopted exactly the inverse proportion of grapes, exactly the same ones that the super Tuscans have done, the thing that they said was essential to it being a Barolo, they abandoned because, turns out people liked the other wines better, right? So. So the point is, is that like, there, there need not be and trademark law does not require anything about the consistency of the goods. It's just part of the story we tell about like, maybe the incentives.


Christopher Sprigman  16:02  

So we have a lot to talk about in a variety of different consumer goods, markets. But can we just focus on wine for a second? I'm gonna say a bottle, right? You're gonna say that tonight? Actually, can we just focus on one. But before before we focus on wine as a thing, I want to focus on one as a concept, which is so take Bordeaux, right? So Bordeaux has a GIS a well, many GIS associated with it. And Bordeaux also has a kind of characteristic mix of grapes associated with it. Right. So there, there are grapes that are used in Bordeaux. And there are some traditional techniques that are used as well. And one might imagine a wine produced in Sonoma that uses the traditional mix of grapes, virtually all of which I think are grown in California as well. And which uses the traditional identification techniques as claiming to be a Bordeaux. That is not the world we have. So can we talk a little bit about the world we have? And then why. So why do we have a particular framing of authenticity that applies to wines that applies to spirits that applies to cheeses, for example, that that that is rooted in place and not in recipe or, you know, technique? Anyone want to step over would love to hear


Christine Haight Farley  17:34  

that? Because that is I can't help but think it's a stronger claim than than any kind of authenticity claim with regard to the consumer goods that I think we were more readily thinking of. So why is it stronger, because at least there's a claim to the it's the authority comes from the claim to the land, which, you know, in most cases, there's some firm boundary. And but when we think about authenticity with regard to a mass produced consumer good, you know, that authentic claim is very vulnerable. Right. And this is, you know, what we've been talking about, about how it is somehow claiming some kind of heritage, some kind of lineage, which might go back to a artist, right? That right. And I think that, you know, that's much less stable.


Christopher Sprigman  18:23  

So we'll, we'll focus on one, but this comparator, maybe a good way to focus on it is to get the comparative table. So one comparative might be what we talked about earlier, which is, you know, chairs. So there is a office authenticity story being told about certain chairs or certain tables. Can you talk a little bit about that? And can you talk a little bit about what you think of the strengths and weaknesses of that authenticity framework? And what it's there to do? kind of talk about likes as well. Sure. Lights? Yeah. All right, definitely.


Christine Haight Farley  18:55  

So. So, just a little bit of an interesting story, which I think makes this point very well, when, so I've been writing about mid century modern designs, and when these which is, you know, kind of like the the really the, you know, glorious time most glorious time of industrial design. When these designs came out. There were no intellectual properties to speak of, right, there were a couple of design patents out, that didn't really ever get used toward any productive means, and most people didn't get them. So there were no rights. And and it was at this time, that the companies who produced these designs started to reach towards authenticity. And so the example that you gave earlier about the Eames lounge chair, that design came out, at least, you know, more than a decade after some of the others designs have come out. And by that time, Herman Miller was well versed in the fact that it didn't have any intellectual property, and that there were lots of copies. So we're gonna copy everything Wait Did that design was different from the designs that had preceded it, because that design was meant to be kind of a high status design. So the materials used in the, in those lounge chairs, they were leather, it was Rosewood. It was meant to be a status item. And that design was marketed as Charles Eames. Right. So, so he was marketed. And so this this, you know, kind of reach toward, you know, this, you know, authority comes from the author, right. And we are Herman Miller, you know, we are directly linked to the author. Most of these designs, you know, went out of production in a couple of decades, and were abandoned in the sense of, there were any rights to start with. And then some companies came on the scene, like the company modernica, in California, and they went, and they bought the machinery from the original producers, who are not Herman Miller, who was not another company, but you know, a subcontractor of a subcontractor, they bought the original materials, in the case of the fiberglass chairs they bought, I think, like 12,000 of the seats that had never been put together with the bases. So they had the authentic pieces, and they produce them with the same materials and the same machines. And they were the only ones selling these things plus lights. Those were marketed as the authentic good until Herman Miller found a way around that, through various means litigated. And now Herman Miller is the authentic producer, and the only producer. And if you buy almost anything, in this vein from Herman Miller, it will come with a certificate of authenticity. But most of those designs have been altered, right? They've made modernizations. People are now bigger. So the dimensions need to change the materials need to change the you know, processes is modernized. And so in some ways, the authorized version that comes with a certificate of authenticity is far less authentic.


Christopher Sprigman  22:13  

Yeah, it's interesting so that wine has changed to right and this is there's a there's a story of continuity that is told about place just like this the story of continuity that's told in furniture about heritage and an author often continuity is a little bit oversold right there's there have been some changes. The Super Tuscan story is a great story. Barolos a difficult wine to like, unless you spend a ton of money and wait a ton of time for it to soften up super Tuscans are very friendly, right? So they were appealing. Turns out that tastes a lot more like no just read in the form Yeah, yeah. But I am really interested in this idea of like, what other stories could we tell so if if you were in control Christine of of the authenticity story in furniture if you were the person deciding what story would you tell that story? Would you watch


Christine Haight Farley  23:02  

it tonight? Can I am sure smokes Yes.


Unknown Speaker  23:08  

Yours up and


Mark McKenna  23:11  

I just have one thing while we're waiting for to get the slides up as I just just as an observation, which is one not surely not the only one difference between at least the authenticity story claimed by producers of wine versus in the design context, which I think is a great comparator is that the wine producers at least feel the need to tell that story in a way that is reducible to some characteristic of the wine itself? Right? It might be a made up one might be mysterious, it might be that the land actually isn't like a real characteristic but but they say it is right they say that the terroir is like an irreducible feature of the line and that it can't be reproduced in another place. Whereas the authenticity story that's made about design is not actually about the physical characteristics of the product at all. It's about the intangible design as such, right. So it's D materialized.


Christine Haight Farley  23:57  

So the design story I'd want to tell is so here's an example of the marketing right? Beware, you know you're looking for the real things could be not more perfect for our for our conference, this old and and you see the the Eames lounge chair there. So the design story of the George Nelson light, and I am having trouble


Unknown Speaker  24:19  

making this.


Christine Haight Farley  24:24  

So George Nelson is famous for the bubble light, which now Herman Miller makes. And the reason he designed that bubble light in the first place is because he really, really, really wanted one of these lights. And so in the early days before authenticity was marketed by Herman Miller, he told his story, which was he and he said, If I could get one of those Swedish lights in my studio, I would look like I was really it a pillar of contemporary design. So he wanted it for status symbol, it cost $125, which was out of his price range, and so So he works, thank you. And so he came up with the idea to use a much cheaper material, a much cheaper method of manufacture so that he could produce a light that cost $12. Now, he didn't come up with this design, it was another artist and in his studio who came up with a design, but it was marketed always as his. And so it was because he was in an era where these designers were trying to solve problems, which is to make good design available for everyone, right, they were trying to use materials and to use production methods that had no artificial scarcity. But, you know, could be could be bought by everybody could be made quickly, could be made cheaply, served a lot of purposes. So that now to have them sold with, you know, a certificates of authenticity is like, quite ironic. And just to show you what the modernica So modernica was the one who was making these lights. So even they, you know, are, are some claim to heritage, you know, these 30 years, we've we've revitalized everything that they did revitalize it. But yeah.


Christopher Sprigman  26:19  

So could we just move a little bit back to some case studies of how this works out? So, Julie, I am, I recently had been reading about the stock ex case, and in particular, also cases involving the real real and this question of authenticity. So could you talk a little bit about what the authenticity issue is in those cases?


Julie Zerbo  26:43  

Yeah, I mean, I think to some extent, it depends on who you ask what the authenticity question is, and kind of what is it issue. But I think, you know, if we're thinking about the cases that Chanel filed against the real real and against, what goes around comes around, which are still underway. You know, we have Chanel taking issue with the sale of, quote, unquote, inauthentic, you know, infringing goods, based and asserting trademark related claims for that. But then Chanel also makes so false advertising claims, which I think are really kind of the very interesting elements of these cases. And basically saying that, you know, by holding the real real, let's take them for example, by holding yourselves out as authenticating these goods, and offering up goods that are 100% authentic, a claim that has since disappeared from their website. You are misleading consumers. And really, you're not one in a place to make those claims. Because your authenticators are not trained by Chanel, they don't have our, you know, insight in our tools to make such claims. But also, you know, you're you're building a business around claims of authenticity that we're really not sure, or we are sure that you cannot make. And the real real has has, you know, said that's nonsense, and potentially rightfully so. And also says that, you know, if that is the way that we're going to do business, it really puts resellers in a difficult position, because a lot of what their business is based on is being able to claim that they're selling authentic goods. That also ties into stock X because the somewhat of similar claims, I think, are raised there. Originally, stock X or Nike filed a lawsuit against stock X over its NF Ts. It didn't originally make false advertising or counterfeiting claims and out of those after the fact but even from, you know, their original claim they were making arguments about, you know, should stock X be claiming that these products and we can talk about whether NF T's are products later, but are these products are 100% authentic and Nike claims that, you know, that creates some kind of, you know, claim or or, or leads consumers to believe that Nike has authorized these products in some way. When it hasn't. You know, and I guess the crux of all of these are the companies claiming that no one other than them can authorize or can say that that part products are authentic. And when I first read the Chanel V, whichever one was first, I think it was, I forget if it was the real real or what goes around comes around, I was struck that a company would make such claims like we're the only ones in writing at least. And I've since learned that it's really not the only one making such claims. You know, Rolex is making similar claims, I wrote down the language actually, they they kind of tiptoe a little bit with the necessarily necessary knowledge, skills and technical know how official Rolex retailers are best suited to guide you through the range of available models, blah, blah, blah, blah, blah. So they're not explicitly saying it, maybe they're just being Swiss and getting most of the way, you know, Autumn are, is a bit more explicit about their watches, basically saying the authenticity of an AP watch can only be confirmed after examining it in our workshops. So this is not limited to Chanel, but I'm not saying that that makes it up.


Christopher Sprigman  31:00  

So I gotta say, I mean, I'm looking at Amy, because I'm just reminded of Amy's paper where she says, So authentication in the art world often depends on foundations, for example, or the representatives of artists living or dead who can authenticate or not, and that authentication is, I guess, almost law in some respects. So when I hear the statements, the one by Rolex sounds different from the one by Adam ours. So I wonder where Chanel falls on the spectrum. So when I hear the one from Rolex, I hear a kind of cautious statement about we are better at this because we have resources, we have insight into our own products. That's a factual assertion. It may be true may not be true, but it's a factual assertion. The other one that you read sounds more like a concept, which is, authenticity is kind of we as an institution are in charge of this in the way that Amy explained in her paper in the art world. This is often the concept of play. Where Chanel on this spectrum, do you think


Julie Zerbo  32:04  

I think we can all guess, I think they generally are leaning more towards, we will help you will make this decision about what is authentic, I'm garnering that kind of from the language that they use when it comes to restoring and repairing they say things like we're the only ones that can restore your bag in an authentic way. And so I'm assuming that that same same view, kind of parlays


Christine Haight Farley  32:34  

into this as well de Authorize. Yeah, yeah, exactly.


Sari Mazzurco  32:38  

I want to pick up on the the watches, because watches are actually really complicated for the purposes of trademark law, because it's actually an assemblage of a lot of different things going on in a single watch. And like any component part of a watch could be an authentic one thing or another, like, in my paper on with Mark Lemley on customization of aftermarket goods so that you could use an authentic Rolex watch face or dial or the internal mechanism that makes the the watch work. And if you repurpose from, like vintage Rolex watches and replace it or something like that, or just use the casing, and it has different internal mechanics, there's a real question as to what constitutes an authentic Rolex watch, or do you have to disaggregate the claims about the watch to say, this is an authentic, you know, Sarah mazurka watch containing an authentic Rolex mechanism. So there was a recent case, that was really interesting. I think it bridges the conversation about furniture, and wine, Hamilton versus Vortech. More Tech was this new watchmaker that was using authentic Hamilton pocket watches, and then replacing them as wristwatches and selling them as Vortech. But they contain the Hamilton logo, because guess what the Hamilton logo actually appeared on the Hamilton pocket watch. And Hamilton sued and they lost in the Second Circuit. Because there there were sufficient disclosures really, that this was a different creator. And this all came down to like the traditional likelihood of confusion standard under trademark law that someone a purchaser in this, like luxury watch market knows what they're getting. They know they're getting a board ticket that contains a Hamilton and not just to handle


Christopher Sprigman  34:32  

their post sale confusion claim, and I'm trying to figure out how


Unknown Speaker  34:35  

there's a legitimate one. Yeah,


Mark McKenna  34:37  

I just wanted to tie this back to the very beginning of our conversation where we start, you know, talking about, you know, the question of whether we assess authenticity as a sort of empirical question about the features of the product, or actually it's just about somebody's ability to sort of authoritatively sort of put the stamp of approval on it. I said at the beginning that you know, trademark law is kind of like very much at one end of the spectrum which is like authenticity is about Somebody's putting their stamp of approval on something, except there's one really important caveat that I should have given them, which is, once you've sold the product, right, and the after sale market, we've always sort of assumed like your chance to stamp it and call it authentic was before you sold it. And once you sold it, like that travels with it, right? And so then it's created lots of these difficult cases and the first sale context about like, how much change can be made to a product before that is no longer good as an authentication, right? So it's and you know, those cases struggle with those things, and trying to figure out exactly how much change is possible. So to some extent, those cases, you can think about them as like, what are the boundaries of the product? Right? So what is the watch and like, you resell a used car? And undoubtedly, by that time, you've replaced a whole bunch of the parts in there, does that make it no longer an authentic version of the car? So we started with that problem, right. But the Chanel cases are sort of interesting, a different problem, which is really trying to take back the idea that once you've released a product into the world, you're done with your authentication, right? Which is them saying? No, for now and forever. It's only authentic if we say it's right. And it doesn't really matter what else you are doing. And so like the the weaker version, which is, I think, still problematic of the Chanel cases, if you claim as the real real to say you're authenticating stuff, that is an implicit statement that you're affiliated with us, right? Because the world understands authentication to always relate to the trademark owner. So that's like an implicit statement, but subject to like little confusion, the stronger version, which I think is is is bonkers to use a technical term is that just as a conceptual matter, it's just not possible for anyone in the world other than the trademark owner to authenticate.


Christopher Sprigman  36:48  

Yeah, but I want to get back to that because there's a conceptual matter, there is an assertion by IP rights, in some cases themselves, that authentication is really about a certain place or a certain time. So let me give you the example. So let's get back to Bordeaux. So if I make a wine, always get back to that if I make a wine in California, that is made with the same grapes. It's not simply that I can't call it Bordeaux. I can't certain GIZ grandfathered in. So this is actually kind of complicated. But generally speaking, the concept is I can't refer to the place as a comparator. Right? So I can't say this is Bordeaux style wine. Now, what message does that send about authenticity? What message does for example, the use of copyright as a tool in Europe, this is okay, I talked about feature earlier today, they are using copyright. Why? Because unlike here in the states where the useful articles doctrine limits the application of copyright to things like tables in Europe, there really is no such break. I like how you stated the useful articles I can as if you know what it is right now.


Mark McKenna  37:56  

Those are not shuffled


Christopher Sprigman  37:57  

can I just, I'm just gonna say one thing. It has been restated, and so we now but in any event, I am interested in what messages about authenticity, those legal regimes are sending the in Europe with furniture in around the world with GIS with wine or cheese, or any of those. Anyone want to take that on?


Mark McKenna  38:22  

I mean, the superstrong version, like, you know, the actual gi rules in Europe, which don't, don't allow those referential kinds of uses, which I think that would, I mean, that would generally not be an accurate description of the US system because of the nominative fair use doctrine. It but but you know, those are, I think, go beyond authenticity. Those are more like, it's not even, it is an inherently false statement to say that something is like Bordeaux, when it is not from Bordeaux, right, that it's just sort of not conceptually possible for something to be like another thing if it's not from the same place.


Christopher Sprigman  38:58  

And on what authority is that assertion made?


Unknown Speaker  39:01  

French authority


Christopher Sprigman  39:04  

copywriting in Europe, what message about authenticity? Is that sending or allowing people to send about these designs?


Christine Haight Farley  39:13  

Yeah. You know, I think it doesn't really so much matter whether it's copyright or trademark, as Mark was talking about, but I do think it is a collapsing of ideas. And it's it's possibly a very strategic move. So in what I'm looking at, in the absence of intellectual property rights to collapse these two. So what I didn't mention is one of the strategies that Herman Miller used was to create the George Nelson foundation. So the principle of the George Nelson foundation is Herman Miller's General Counsel. The address for the George Nelson foundation is the same address as Herman Miller, right. It's kind of a shell operation, which received all the rights and you're Merge Nelson's designs, from his 93 year old widow, had them transferred to the foundation, there were no rights, there was no rights to transfer. So by by going from artists to widow to foundation to Herman Miller, there is a provenance that makes a claim to IP rights in the absence of IP rights, right. But the IP rights also kind of influence how we think about authenticity about the person who can authorize, has authority has the author's authority. And I think it kind of messes up both worlds in a way. And maybe especially in design, where the idea of provenance of this of this lineage has the ability to create rights where rights have been expired rights have been abandoned rights never existed in a place where maybe reg should be shorter, much shorter than copyright.


Christopher Sprigman  40:58  

Okay, I want to leave some time for questions. So I wonder if people have them? And if so, will they step up to the mic, please? And ask them?


Unknown Speaker  41:07  

I had a question. Go ahead.


Christine Haight Farley  41:12  

What's going on with these customization stuff? You know, I was a student was just showing me this web page for one twelves. And I don't know anybody, anybody one twelves, where they have like mashups of Doc Martens, with, like strips of fabric from Louie baton on them, oh, or or Birkenstocks with, you know, Prada or Fendi on it. And it's so clearly, and they say they are using all authentic materials. But, you know, I think there's definitely something to status when when consumers want the authorized authentic good. But then there's just I don't think that's it. Right. I don't think I think it's such a mash up that it's clear. It's not, you know, it's not coming from Louis Bhutan. So, so what is what is the brand doing there?


Sari Mazzurco  42:05  

I mean, there's certainly value in knowing that the base of this, like final product is an authentic Nike shoe or that it uses authentic fabric that was once part of a handbag or something like that to be tassels on this shoe. But there's also value in it being from a certain customizer these days also, because there are these like customization houses like mischief that have sprung up so there's value in having a mischief customize Nike sneaker, and it's really hard to separate where the value comes from, you could kind of guess based on buying a $90 plain Nike shoe versus a $600 or $1,000 customized version of it that the value comes from the customization and not the Nike shoe. But when people on the street look at this shoe, we have to wonder what do they think they're looking at? Do they think they're looking at a mystery of shoe because there's so much publicity around mystery of shoes? I think it's fair to say yes, but for the smaller customizers like Drew creations, which was the subject of a lawsuit. When someone on the street sees a Nike Air Force One that has Chester's the Cheetos cheetah drawn on it. Do they think it's a Cheetos Nike shoe? Do they think it's a Nike shoe? Licensing the cheetah image from Cheetos? Or do they think it's a drip creations? And a lot of that has to do with how saturated these brands are in our culture and kind of which carries, which carries the weight in terms of establishing its identity and pervading the conversation about about like sneaker culture in particular.


Julie Zerbo  43:42  

I think it's interesting, too, because collaborations or tie ups that we wouldn't have thought we would ever see 10 years ago are really pervasive in the market. Like it's not unheard of that, you know, it's not a bad deliverable that Cheetos would collaborate with a mass market shoe company, because it's just that weird right now,


Sari Mazzurco  44:01  

you know, the monkey? Yeah, the Chunky Monkey shoes. It was a Ben and Jerry's collaboration licensed with Nike. And it came in a gallon size Ben and Jerry's container.


Mark McKenna  44:13  

So this is just to add, I mean, if it's a little bit of a hobby horse of mine, but so I think that this is actually all a function of the fact that so trademark law now considers as infringing any kind of confusion about sponsorship or affiliation. Those are terms that have an incredibly wide berth that have never been precisely defined. And in a world where all these collaborations are conceivable, which I think increasingly is true. It feels more like these cases are just pure questions of like, should we get to it? Should people get to do that or not? Right? It's not really an empirical question about confusion, because if you're asking 15% of the people, can you imagine that there's a collaboration here? The answer is always yes.


Christopher Sprigman  44:51  

I just arranged a collaboration between an athletic shoe manufacturer a very high end boutique and a smoked fish purveyor. Have they collaborated on a shoe? I'm just saying it's like a collaboration. Okay, so questions from the audience, Jeremy.


Unknown Speaker  45:14  

So what the first is merchandising. So merchandising, right? It's obviously something that scholarship, merchandising, university or sports, clothing and things like that. Authenticity obviously plays a big role there. And Bordeaux for mustard? And the second is what if different consumers have different conceptions? How arbitrary?


Christopher Sprigman  46:02  

Those questions are connected to Yeah.


Unknown Speaker  46:05  

I'll take a second. Okay.


Mark McKenna  46:07  

I was just gonna say something about the merchandising thing. So I mean, you know, all the original merchandising cases, are courts just making it up, right. I mean, so there was absolutely no way it was empirically true in the 1970s, that consumers thought T shirts that had logos from the universities on the front of it came from the university, in fact, and we have good evidence of that, because we know in lots of those cases, that it was long standing practice, and many of the college towns that nobody really cared about, or tried to do anything about. And then all of a sudden, some marketing agents were like, we should be making more money on that stuff. And if you read those cases, like I mean, the University Wisconsin bookstores, my favorite target here, that the case at the TTB, because it's just like a joke as a matter of law, right? They just run over like three bedrock trademark doctrines, because they're like, we want the universities to have these things. But this is sort of like the problem with trademark laws, they may have created a world in which now everybody's expectations are that there was actually a licensing relationship. Now maybe they only think that because they think the law requires it right. And they don't actually so on the authenticity question, I think it's always authentic as to what like, you know, you, you see a university t shirt that has an Under Armour logo on it, nobody thinks the university is the one deciding the threat account there, right, or deciding how the t shirt is going to perform. That's why they have under armour to do that. But they probably also think Under Armour needed to deal right with the university in order to do that. And so the authenticity is really entirely about the image. It's not really about the goods themselves. It's like another way in which trademark law has sort of moved away from or ignore this sort of inherent connection to the nature of the goods. But interesting question, now can you put the genie back in the bottle.


Christine Haight Farley  47:43  

So I went down a rabbit hole, and went on to Reddit, to discover this whole world of subreddits with the word with the with a reps, either, you know, sneaker reps, or rep sneakers, those are two different communities. And there's and there's reps everything, which is about the replica world. And, and so it's a vast number of people. Very, very active subreddits. And it is consumers. It's user generated information, trying to make transparent, all the multi level goods that are available in the market that are not authorized. And there and so there's a lots of different opinions about what it means to be authentic. They've created their own language system, which is all cool to indicate, like, you know, what is the things of good quality? So there are there's such a thing as super fakes that are, you know, that are indistinguishable quality, very expensive, but still a reduction. And, and I think, you know, there's something really positive in that, like, it indicates that there is a broad market. And so this is something that the kind of real fake dichotomy collapses, right. It means there's a premium price, and then everybody else is racing to the bottom to have the cheapest counterfeit. Right and that is certainly not what's out there. And consumers know it.


Unknown Speaker  49:13  

Well, more questions? Yes, right. Typically tradition but for example, for financial investments with artifacts. Here, I just wonder if maybe we just can't or shouldn't necessarily, the same body of law is designed to regulate in the appropriate way


Mark McKenna  50:00  

You know, it's almost like you were spying on our lunchtime conversation we were talking just go ahead. Sorry. Oh,


Sari Mazzurco  50:08  

I mean, I'm very sympathetic to the question. Because trademark law is used very expensively by brands to protect streams of revenues, basically. And to stay grounds for new revenue streams. Like what we're seeing the NFT space, the suits are really prospective trying to build out a set of rights that don't currently exist in trademark law. And there's a really messy intersection between trademark law and trademark rights and culture and creative expression on the other hand, and it butchers how it treats art in general, whether it's about the investment aspect, or just like the communicative aspect of art. And so I am on board with you that it really forces you to rethink whether trademark law should proceed in this space, rather than be more aggressive and kind of make it even more complicated and Harder, harder to know what your rights are, or what they should be.


Christine Haight Farley  51:09  

Authenticity, authenticity, or IP, but not both choose one.


Christopher Sprigman  51:15  

Yeah, but they're inextricably intertwined at this point. Right. So you know, it's, it's in everything. So, now, American manufacturers of furniture are making beds. And the Ninth Circuit basically just remanded a case, that seems to be going in the direction of Herman Miller to establish trade dress rights in the design of mid century modern furniture, right? So that's a whole nother frontier, right? That has been occasionally, you know, gestured at, but mostly not used, right, but But maybe now that's about to turn a corner. So the idea is, over time, people look at a chair, that could be a Charles Eames chair, and they start to form the expectation that the chair comes from one place. And so if that's the case, then the shape of that chair is a source indicator. So the company that use that the most is a company called Amoco and Pennsylvania, which makes the Navy chair, which is this aluminum chair, it's ubiquitous, you see it all over the place. It's it's available in many copies traditionally, but Amoco has brought lawsuits and has settled them on favorable terms with pretty big companies like Restoration Hardware, for example, and target, on the idea that the shape of this chair, which they didn't design, which was designed actually for the US Navy, and the marketing for this is amazing. It's like they say This chair was designed to withstand a torpedo hit.


Christine Haight Farley  52:48  

And my not at all functional, right?


Christopher Sprigman  52:50  

My reaction was like, hey, it's functional and be when is a torpedo going to hit by? I don't care if the chair withstands it, my only concern is I'm not going to be there, right? I just, this is the next frontier, right, and this is an authenticity claim that this shape is authentically associated with this source. So they're, they're inextricably interested. But


Christine Haight Farley  53:13  

there's a there's a smaller legal news going in the other direction, which is the TTAP just decided the case involving the Eames plywood dining chair, which Time magazine called The design of the century. And there, they decided that they could not separate the function from the design. And that's exactly what Charles Eames would have always said, is that there's no such separation of design from function. So I


Mark McKenna  53:44  

guess I'll just add one thing about the, you know, the product configuration cases have always been confounded by this problem of like, when you think about the secondary meaning, do you really think that that means secondary meaning in the sense that consumers think that physical thing comes from a preset particular source? Are you really just saying, you identified the design with a particular designer? And I don't really, I don't think courts in any meaningful sense, try to tease those two things apart, nor do any surveys that I'm aware of actually try to get at the difference between them. But actually, it's an enormous difference, remember least the conventional way of thinking about trademark law. One of those things, at least as trademark law has recently evolved is sort of in the bucket. But the other thing you should definitely not be right. This sort of this emanates from a particular source. I mean, especially like that out of these a bunch of Daystar litigation about those kinds of things, if it's just about the abstract design as an intangible thing, as opposed to the physical problem is, is when they start to control production of the physical, it's just like those two things running together in a way that make it hard to pull it apart.


Christopher Sprigman  54:44  

Okay, we have we're kind of time for one question if there is one.


Unknown Speaker  54:58  

Your brands are overseas Stepping push a trademark replace too far interfered with artists ability to use speakers as Canvas transforming speakers in that way. Paper Company with a brand on watermark sue an artist because


Sari Mazzurco  55:23  

I really I love that you said overstaffing. Yes, and I would say yes to your question. And I think it's really hard to separate in your mind or for the purposes of law, a six year old using a Hanes t shirt and tie dyeing it selling it in the school fair, from an artist drawing clouds on an Air Jordan and then reselling that in commerce, like, you really have to dig deep to try to justify treating those two cases differently. And part of it I mean, a large part of it is from the kind of brand exposure the fact that you can't look away from the Ayar on an Air Jordan or the swoosh on a Nike shoe. Whereas the Hanes logo was internal or like the Blick watermark is on the back of a canvas. But Nike is trying to stake out some real ground and trademark law, it said, and it's sued against drip creations. Effectively, that they have an exclusive right to customize. They have an exclusive right to downstream uses of their products, which is just ridiculous when we think of the way we use consumer goods. And if you put a bunch of stickers on your MacBook, and then you sold it on eBay, are you infringing Apple's trademark by engaging in that sale? Like your gut tells you? No. And if Apple were to assert that claim, it would be an expansion of trademark law not not a very like straightforward application of state the law isn't today.


Unknown Speaker  57:00  

All right, we've


Christopher Sprigman  57:01  

got to wrap it up. Thank you so much, everyone.


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