Trade Dress Infringement Against Victoria’s Secret Get’s JUICY!
Juicy Couture, a division of Liz Claiborne, has filed a trade dress infringement lawsuit against Victoria’s Secret, alleging the lingerie giant copied Juicy’s protectible trade dress, namely its pervasive use of the color pink as a brand identifier and it’s practice of putting a brand name on the seat of sweat pants (in this case, Victoria’s Secret actually uses the word “pink”). Juicy also claims that Victoria’s use of LOVE PINK is an attempt to capitalize on Juicy’s use of its LOVE G&P mark.
In addition, the suit alleges Victoria’s Secret copied Juicy’s “Sweet Shoppe” packaging for its own clothing. The packaging makes clothing appear to be in the shape of candies, bon bons, and lollipops. Juicy claims it has been using the candy-wrap trade dress since 2005.
The complaint, filed April 28, 2008, makes numerous comparisons between the designs put out by Juicy and Victoria, including a comparison of the Juicy Couture logo, which looks like a university crest, and the logo created by Victoria’s secret, also a university crest. Although Juicy has roughly 75 trademark applications and registrations, primarily for word or design marks, it relies on its common law rights for its trade dress claims.
A case against Victoria’s Secret may be difficult to establish, given what Juicy is trying to prove: namely that the grouping of the entire line, viewed in its entirety, amounts to the infringement even if the individual parts may not alone be protectible. For instance the placement of words on the seat sweat pants has been done by universities for years. Indeed, the JUICY brand capitalizes on the university crest. The practice of wrapping clothes to look like candies has been done by street vendors in New York to sell their wares. The color ‘pink’ has been associated with women’s clothing (and brands), too. While it seems obvious that Victoria’s Secret has copied the overall concept of the line, a judge may find it difficult to hold that Juicy owns the color PINK for women’s clothing, except as a brand color.
Practice Note: This author’s legal opinion may not be as valuable as that of her receptionist’s, who when told about the case said, “but why is Juicy Couture suing Victoria’s Secret? They carry Juicy’s stuff in their stores!”