Nonetheless, a controversy regarding the company recently emerged in Peru. Even though a Peruvian citizen legally bought products in one of the luxury brand’s flagship stores, he ended up being indicted by the company and accused of buying counterfeit goods.

Louis Vuitton v. Walter Gutiérrez (Exp. Nº 879697-2021/DSD)

Walter Jacobo Gutiérrez, a Peruvian citizen, was accused of having illegally bought counterfeit goods depicting trademarks from a famous luxury brand, with the intention of selling them.

On November 2020, Walter arrived in Lima from New York and he was intervened by the airport authorities, who after checking his luggage, retained some items. Among the seized products, the authorities found: two pairs of sandals, three pairs of women’s sneakers, and two pairs of men’s shoes^[2]; all showcasing various trademarks in regard to the “Louis Vuitton” brand.

Image Source

Upon becoming aware of the facts, the Louis Vuitton company did not hesitate to take legal action against Mr. Gutiérrez, due to the fact that at first glance, the items appeared to be counterfeited goods meant for commercialization. As a consequence, the company presented a trademark infringement claim to the corresponding authority (INDECOPI)^[3].

During the proceeding, Mr. Gutiérrez denied that the products were imitations and affirmed that thanks to his high income, he is able to constantly travel to the US, which allowed him access to products from prestigious international brands as well as being able to afford original Louis Vuitton products.

Likewise, he denied being a counterfeit seller in Peru, since he bought different kinds of items as gifts for his relatives. Also, Mr. Gutiérrez requested Louis Vuitton to check the serial number of the shoes in its database, so as to prove the authenticity of the products. Even though he did not keep the original payment slips, he defended himself arguing that not keeping them does not imply that he is an importer of counterfeit footwear.

On the other hand, the French Maison alleged that the Peruvian citizen had imported shoes that reproduced “similar signs to our notoriously trademarked brands, without any authorization”, according to the Resolution Nº 0595-2022/TPI-Indecopi^[4]. In addition to it, they mentioned that the burden of proof relied on Mr. Gutiérrez, so he should be the one to present receipts to support his claims (Resolution Nº 0595-2022/TPI-Indecopi, p. 6).

In the first instance, INDECOPI ruled that since Mr. Gutiérrez did not present any evidence that proves he actually bought the goods in a Louis Vuitton-authorized store, he was declared guilty and was sanctioned with a fine amounting to US$ 4,700.00 approximately.

Mr. Gutiérrez filed an appeal

However, Mr. Gutiérrez alleged that the previous resolution tarnished his honor and reputation, so he filed an appeal. In the second instance, he presented evidence that showed that he actually bought the items at the Louis Vuitton flagship store located on the iconic 5th Avenue in New York.

Image: Resolution Nº 0595-2022/TPI-Indecopi, p.13.

As a result, the brand decided not to issue any pronouncement and a couple of days later, they presented a motion to withdraw the proceeding, which Mr. Gutiérrez agreed on.

Louis Vuitton presented a lawsuit against INDECOPI

Nevertheless, this legal controversy is not finished yet. The company questioned the second instance resolution issued by the specialized intellectual property chamber that favored the Peruvian citizen and presented a lawsuit against INDECOPI^[5].

According to the legal defense of Louis Vuitton, INDECOPI violated the principle of legality, since, in the second instance, INDECOPI ruled on the merits of the case, despite the withdrawal of the company, which should conclude the proceeding in advance and prevent it from being resolved on the merits of the case.

While in its resolution, INDECOPI ruled on the case’s merits to justify the payment of costs (the expenses that arose during the administrative proceeding) and legal fees; the company affirms that attributing that payment in favor of Mr. Gutiérrez contravenes the legality principle.

On the other hand, according to La República^[6], in one of the media appearances of Mr. Gutiérrez, he affirmed that the luxury brand has still not apologized to him and through the lawsuit, they are expecting to revert the mandate to compensate him for the legal fees and costs. Furthermore, as of today, 2 years later, Mr. Gutiérrez has not received the products that were confiscated at the Lima airport, despite the fact that it has been proven that the items are original and were purchased in an official store of the brand in the United States.

References:

^[1] https://www.voguebusiness.com/companies/louis-vuitton-reclaims-top-spot-in-vogue-business-index

^[2] https://laley.pe/art/13926/louis-vuitton-denuncio-peruano-error-confundir-calzados-imitaciones-productos-bamba

^[3] In Peru, Indecopi is the national authority competent to deal with Intellectual Property, and, in order to properly implement such duties, Indecopi counts with three Directorates: the Directorate of Copyrights, the Directorate of Patents and New Technologies, and the Directorate of Distinctive Signs. (https://repositorio.indecopi.gob.pe/bitstream/handle/11724/5566/intellectual_property.pdf)

^[4] https://es.scribd.com/document/589969866/Louis-Vuitton-confunde-sus-propios-calzados-con-imitaciones-y-denuncia-a-peruano-Resolucion-0595-2022TPI-Indecopi-Laley-pe

^[5] https://www.scribd.com/document/606850573/Louis-Vuitton-demando-a-Indecopi-por-resolver-a-favor-de-peruano-al-que-sindicaron-falsamente-de-importar-productos-bamba-de-EE-UU

^[6] https://larepublica.pe/datos-lr/respuestas/2022/11/12/louis-vuitton-quien-es-walter-jacobo-gutierrez-el-peruano-que-fue-denunciado-por-la-marca-de-lujo-y-le-gano-el-juicio-louis-vuitton-peru-evat/

Sadly, aging is not reflected positively in the fashion industry, not even in the imagery we see in magazines and adverts. Just in the beauty industry, we are bombarded with tons of “remedies” and “recommendations” to look and stay younger because we have been conditioned to assume that looking “younger equals healthy/pretty”. Due to the huge influence of advertisements, most people become insecure, feeling like their body is not enough, and that since they get older, they should stick to a certain specific boring attire. 

We should remind consumers that fashion is a way to express themselves and that they should not limit their creativity in terms of age. A reasonable change of mind might happen if fashion brands would start hiring older models so that more people can feel represented in the media. However, to analyze ageism in the fashion industry we must ask ourselves the following question: What has caused the fashion industry to systematically hire younger female and male models?

The principal reason behind the decision of portraying younger female and male models rely on the fact that this industry can be aspirational: fashion brands tend to prioritize youthful aspiration over a realistic depiction of what their customer actually looks like. Apart from that, youth and vulnerability can go hand in hand; with a lack of diverse age representation comes a lack of experience, which brands can take advantage of. However, not only age comes into play as an important factor, but gender as well.

For instance, female models do not have an easy journey. They are expected to start their careers at a very delicate and young age like 13-14 years old, compromising on their childhood and teenage learnings and the career ends also very fast. Comparatively, Male models have a longer career path and have offers coming in even at the age of 60. While most female models can be ready for retirement by the time they turn 25, males tend to start later and are more likely to make modeling a long-term career.

Apart from commercial modeling, on the runway, anti-establishment brands are carving out space for a variety of representation. Some designers like Yohji Yamamoto and Junya Watanabe have been casting older male models for decades. Although more work needs to be done, male models still have more opportunities in the fashion industry in spite of the ageism phenomenon. What is being done to include older female models?

To combat such situations, there are ventures in the fashion industry like The Bias Cut. Jacynth Bassett founded The Bias Cut as an age-inclusive fashion boutique, after learning about the ageism her 66-year-old mother faced when shopping. She argues that fashion makes older women, in particular, feel “irrelevant or invisible,” which has an inevitable knock-on effect when it comes to self-esteem.

According to Hannah Swift, the industry defines what we should wear by shaping what we think and feel is age appropriate. As a result, people find it difficult to express themselves through mediums of fashion in a way that makes them feel good about their age. If fashion brands start catering to older people, it will benefit them in a way that this audience has a higher economic power. Not only this, but it would also benefit society by reducing anti-aging narratives, which as a consequence perpetuates negative stereotypes that underpin ageism in society.

Let’s not forget that fashion has the supreme power to shape societal standards. We’ve been taught for a very long time that youth and beauty go hand in hand, but this fetishization has made it possible for young models to be exploited, and older women in particular have been erased despite having more money to spend. If we are guided by the fashion industry standards, usually women over 50 are thought of as a group with no diversity. In reality, fashion brands should cater to them and view them as unique and modern, while at the same time ensuring that they must embrace their age, rather than trying to aspire to be younger. On the other hand, men over 50 are thought of as a group who wants boring plain formal attire; when in reality, older men can also want to express themselves with vibrant clothing, so male models should represent them as well.

To sum up, ageism in the fashion industry is still a phenomenon that has not disappeared. This can be represented by the difference between gender as well, since older male models still have a lot of career potential, in contraposition to female models, which –generally– can be considered for retirement once they reach 25 years of age. Nonetheless, as the quest for diversity expands, more fashion ventures are trying to change the previous fact. Let’s hope that the future looks bright and the fashion industry can embrace models getting older. Nowadays, consumers are aspiring to become a better version of themselves, rather than desiring to be younger. The fashion industry must listen.

]]> https://fashionlawjournal.com/ageism-in-the-fashion-industry-male-vs-female-models/feed/ 0 https://fashionlawjournal.com/the-hunt-for-exotic-and-diverse-in-fashion-industry-cultural-appreciation-or-appropriation/ https://fashionlawjournal.com/the-hunt-for-exotic-and-diverse-in-fashion-industry-cultural-appreciation-or-appropriation/#respond Sat, 29 Jan 2022 05:06:57 +0000 https://fashionlawjournal.com/?p=2988

“Fashion is supposed to be something that helps us escape to a magical place in our brains. Not something used as a tool to oppress people”

– Aurora James

Colonialism laid the foundations of what we know of the world today. The supremacy of certain hegemonic traits expanded all over planet earth, thereby opening the doors to globalization due to the curiosity that dominating powers had for other cultures. At its beginnings, many misconceptions arose about “the others” with different skin tone, facial or body structures. However, science has overthrown these racist or discriminatory beliefs which are heavily sanctioned now and remain in the past. Nowadays we see that new generations are showing more empathy towards other cultures and their sociocultural struggles.

As a consequence of the revalorization of what is considered different, unknown, quirky, interesting, or mystic; many artists find in other cultures inspiration to create and profit from the usage of the heritage that does not belong to themselves. This premise brings us to theorize around the limits between how far can artists or designers go because a very fine line stands between: a) paying homage to other exotic cultures and b) appropriating those cultures while taking advantage of them by mishandling their ancestral knowledge.

After giving a brief contextualization, this article focuses on the fashion industry and the deep-rooted issues that are presented when designers do not act ethically in their quest to innovate by appropriating other cultures and not appreciating them correctly.

EXOTICISM IN FASHION

Exoticism in the fashion industry is not new, this debate has been going on for decades. According to Madelyn Shaw^[1], this concept applied to fashion can be represented as viewing “the other” in a romantic light, that is, mining other cultures in search of styles, patterns or motifs –everything related to art and creativity– with the sole purpose of producing unique marketable designs.

All around the world there is a need for diversification, especially in the fashion industry, since inspiration that comes from foreign sources are greatly appreciated for the beauty and inventiveness that they bring. “Novelty is a global desire”^[2] and the sense of mystery can be very intriguing to customers and designers. Nonetheless, where do we draw the line? When is a piece of clothing considered appropriation and when is it considered appreciation of a foreign culture?

CULTURAL APPRECIATION OR CULTURAL APPROPRIATION?

It is no secret that fashion designers draw inspiration from all kinds of places, objects, and more; as the fashion world constantly praises and encourages innovation. Nevertheless, a debate is presented: it could be said that there is a pair of scales between two general ideas, one being people who are in favor of a dynamic fashion industry which implies supporting the diversity of cultural influences, that is, by borrowing or mixing different traits from cultures and portraying them in fashion designs. On the other hand, a group of people may be against the previously mentioned premise, by asking for respect for indigenous rights and their heritage, since misrepresentation can appear by sourcing elements from traditional cultures and reusing them out of context, which can cause harm. We will delve a little deeper into the definition of traditional cultural expressions that are often used for inspiration in the fashion industry.

Traditional Cultural Expressions^[3] (hereinafter TCE)

Also called “expressions of folklore”, these are tangible or intangible forms in which long-established cultures are expressed or embodied, they are passed down from generation to generation and often in an oral context, they are linked to indigenous people or a local community and usually the authors are unknown.

For instance, traditional clothing from a specific community does not only portray functionality or decoration; it is much more complex than that and it has a communal meaning, due to the fact that it constitutes an identity element to that specific group of people. Hence why copying designs without taking into account the underlying cultural component can negatively impact them. Below are detailed aspects around the definition of cultural appropriation as well as a famous case regarding this matter in fashion.

CULTURAL APPROPRIATION: CAUSES AND CONSEQUENCES

Cultural appropriation in fashion can be considered as a way of reclaiming ownership of traditional cultural expressions from another culture (in most cases a minority) by imitating their designs and breaching their alleged intellectual property rights without any kind of consent, compensation or credit. In other words, we are referencing groups of people being taken advantage of when their intellectual rights are not being recognized. However, it is important to mention that in most of these cases (if not all), due to the open nature of the communities, they do not register their designs legally.

Mainly the problem relies under the fact that indigenous people do not view their heritage in terms of property (this being something that has an owner and is used for the purpose of economic benefit), they value their heritage in terms of community which carries certain responsibilities; such as showing respect and intertwining their cultural expressions with the preservation of reciprocal relationships with the environment.^[4] As a result, they do not have the need to register their intellectual property rights.

Now, in the first place, to what extent may governments interfere regarding the fact that certain demographics should obtain exclusive rights to intellectual property? Since culture exchange is not meant to be stifled, cultures are dynamic and evolving all the time, many people would argue that there is no such thing as “appropriation” if designers are meant to take inspiration from all different kinds of sources. Thus, traditional cultures should not be awarded any kind of intellectual property protection.

On the contrary, it could be mentioned that under the 2003 UNESCO Convention on the Safeguarding of Intangible Cultural Heritage^[5] some kind of protection was provided; still, it does not amount to intellectual property protection and does not give a legal basis to sue anyone for borrowing any form of design.

Meanwhile, general consensus established that cultural appropriation is real and we will continue explaining two cases regarding this topic.

Isabel Marant and the Mixe Huipil^[6]

In 2015, a controversy appeared regarding a dress marketed by French fashion designer Isabel Marant, which depicted a pattern that is named huipil and also distinctively worn by the Mixe people as a symbol of their identity; they are an indigenous community from Santa María Tlahuitoltepec, Oaxaca in Mexico. The main problem lies in the almost perfectly imitated design, which was also priced at around 4500 Mexican pesos, 15 times more than the original dresses sold in Mexico (300 Mexican pesos).

It is important to mention the fact that Marant had not asked for permission to copy the huipil design, nor even acknowledged the inspiration source. Nonetheless, the Mixe people asked for recognition regarding the heritage of the community to be recognized as well as the removal of the blouse from her collection. They also mentioned: “Us, Mixes, are not a fabricated product meant to be registered, we are a living culture, expressing it through our huipiles”^[7], which further explains the reasoning behind the aversion that indigenous communities have towards legally registering their TCE.

Urban Outfitters v. Navajo Nation^[8]

Back in 2011, a legal dispute arose when the Navajo Nation filed a lawsuit against Urban Outfitters claiming the clothing retailer appropriated the Navajo name and tribal patterns. They alleged that the name “Navajo” is trademarked, as well as the Indian Arts and Crafts Act makes it illegal to imply that a product is Native American made when it is not.

The disputed items included: apparel, outerwear and jewelry which were labeled as “Navajo” or “Navaho”. Urban Outfitters also marketed a liquor flask decorated with Navajo patterns, which sparked outrage among the Navajo Nation where alcohol is considered prohibited.

After almost five years, the two parties have reached an agreement. Navajo President Russell Begaye announced that a settlement was reached and that the two parties will collaborate to market authentic Navajo jewelry. He mentioned: “We applaud [Urban Outfitters] for acknowledging the validity of the Navajo Nation trademark and are glad we have settled this matter,” “The Navajo Nation is proud of its strong history and welcomes working in collaboration with [Urban Outfitters] and other retailers to highlight our unique culture.”

As we can see here, in contraposition with the previous case, after the settlement both parties agreed to collaborate in the future; therefore the previous cultural appropriation was acknowledged and corrected.

CONCLUSION 

Appreciating diversity in the fashion industry

Traditionally in the fashion world; photographers, celebrities or models and stylists are credited tirelessly, as well as the end product that is sometimes seen purely as an economic source. Maybe it is time to start focusing rather on the original sources that inspire famous designers: the living, breathing cultures that not only see fashion or their TCE as an economic industry, but as an identity that has accompanied them for decades if not centuries.

Taking inspiration from ancient cultures by hunting for exotic or diverse motifs in contemporary fashion can actually be honorable, but designers should be very careful by paying homage to these cultures in a correct and respectful way by following certain guidelines. This matter may be discussed in a different opportunity.

References:

^[1] Madelyn Shaw, Chapter 20: Exoticism in Fashion: From British North America to the United States, in Global Textile Encounters. 1. Oxbow Books. 186 (Marie-Louise Nosch, Zhao Feng and Lotika Varadarajan ed., 2014). https://t.ly/kJaA

^[2] Id.

^[3] Centre for International Governance Innovation, Cultural Appropriation in the Fashion Industry: Can Intellectual Property Rights Help? YouTube (Jul. 17, 2019). https://t.ly/M9m6

^[4] Erica-Irene Daes, Protection of the Heritage of Indigenous People. 10. United Nations Digital Library System. (1997). https://t.ly/zYvm

^[5] Richard Kurin, Safeguarding intangible cultural heritage in the 2003 UNESCO Convention: a critical appraisal, in Museum international, LVI, 1-2 / 221-222, p. 66-77, illus. (2004). https://t.ly/YhjD

^[6] Naomi Larsson, Inspiration or plagiarism? Mexicans seek reparations for French designer’s look-alike blouse, The Guardian, (Jun. 17, 2015). https://t.ly/vtRO

^[7] Isabel Marant y el caso Mixe. Hilando Historias (Nov. 14, 2015). https://www.hilandohistorias.mx/isabel-marant-y-el-caso-mixe/

^[8] Navajo Nation and Urban Outfitters Reach Agreement on Appropriation. Indian Country Today (Sep. 13, 2018). https://indiancountrytoday.com/archive/navajo-nation-and-urban-outfitters-reach-agreement-on-appropriation