Beneath Louis Vuitton’s Distaste for Jokes, a Serious First Amendment Question

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To just about everyone but Louis Vuitton, the joke is obvious. Inexpensive canvas totes decorated with cartoon versions of famously expensive, iconic designer handbags? That’s funny – especially because the name of the company that makes the totes is My Other Bag, a play on the “My other car is a ” bumper stickers people used to paste on beat-up cars. To highlight the humor, the company name appears in large, loopy script on the other side of the tote bags. No one with even the faintest sense of irony would confuse My Other Bag’s $35 tote bags with actual Louis Vuitton (or Chanel, Hermes or Fendi) pocketbooks.

Louis Vuitton, of course, is famous for its inability to tolerate any ribbing, however gentle, that involves its classic toile monogram. In 2014, the company sued My Other Bag in federal court in Manhattan for trademark dilution and copyright and trademark infringement. U.S. District Judge Jesse Furman granted summary judgment to My Other Bag on all of Louis Vuitton’s claims last January, writing (with his own cheekiness) that the handbag maker “is perhaps unfamiliar with the ‘my other car’ trope. Or maybe it just cannot take a joke.”

Judge Furman’s opinion is 31 pages long and discusses the multi-pronged test for trademark infringement, but in essence, he said My Other Bag is making fair use of Louis Vuitton’s trademarks because it’s just engaged in gentle parody. “MOB’s use of Louis Vuitton’s marks in service of what is an obvious attempt at humor is not likely to cause confusion or the blurring of the distinctiveness of Louis Vuitton’s marks,” the judge wrote. “If anything, it is likely only to reinforce and enhance the distinctiveness and notoriety of the famous brand.”

Proving that it has absolutely no sense of humor (in the unlikely event more evidence were needed), Louis Vuitton appealed the summary judgment ruling to the 2nd U.S. Circuit Court of Appeals, arguing that Judge Furman misapplied the law.

That’s when things got interesting: The case blew up into a full-fledged constitutional inquiry into the intersection of trademark law and the First Amendment. Judge Furman mentioned the First Amendment only glancingly in his opinion, quoting from a 1994 2nd Circuit opinion that said jokes need not be funny to be protected by the constitution. But in their response to Vuitton, My Other Bag’s lawyers at Koppel Patrick Heybl & Philpott and Miller Korzenik Sommers raised the argument that, as parody, the Vuitton-esque canvas totes are entitled to “robust protection under the First Amendment.” That constitutional protection, My Other Bag said, provides an alternative justification for summary judgment against Vuitton.

Last week, a distinguished group of law professors specializing in intellectual property raised the First Amendment stakes in the appeal. According to the professors’ amicus brief, written by Rebecca Tushnet of Georgetown and Christopher Sprigman of New York University, one of the laws Louis Vuitton relied upon to state a claim against My Other Bag is probably unconstitutional.

In the Trademark Dilution Revision Act of 2006, Congress updated the Trademark Act to protect famous brands from being blurred or tarnished by knockoffs. Louis Vuitton claimed My Other Bag’s reference to its toile monogram did both, in violation of the 2006 statute.

The law professors responded that the Trademark Dilution law manufactures “a right unknown to the Framers of the Constitution.” That right, at least as Louis Vuitton wants to wield the statute, is in fatal tension with the First Amendment, according to the amicus brief, which cites the 2nd Circuit’s 2012 expansion of free speech rights in U.S. v. Caronia.

“LV claims that dilution law allows it to prevent the creation of unauthorized new associations with its mark, which is to say, to prevent consumers from forming new opinions and beliefs even in the absence of deception,” the brief said. “This is not just content-based suppression of speech, it is viewpoint-based suppression of speech – the prime evil against which the First Amendment protects.”

I checked with Tushnet to make sure I was reading the brief correctly. Were the professors really calling the 10-year-old Trademark Dilution law unconstitutional under the First Amendment? “Yes, we are arguing that at least most of the dilution law, and probably all, is unconstitutional as a regulation of non-misleading speech,” Tushnet responded in an email.

Louis Vuitton, represented by Barack Ferrazzano Kirschbaum & Nagelberg and Lupkin & Associates responded this week in a reply brief describing the professors’ insistence on First Amendment protection for all non-misleading commercial speech as “radical” and “extreme.”

“Not only did Congress reject these views when it enacted TDRA, but no case has found any problem in Congress’ balancing of trademark rights and First Amendment concerns in that statute,” the Vuitton brief said. The law does not restrict speech based on its content, the Vuitton brief said, and contains a fair-use exception to take care of First Amendment tension.

The Trademark Dilution law’s fair-use exception, which Judge Furman relied on in his summary judgment opinion, may end up short-circuiting constitutional consideration by the 2nd Circuit. Courts, as you know, are supposed to avoid confronting constitutional questions if there are other ways to decide a case. Considering that the trial judge found other reasons to rule against Louis Vuitton, it’s entirely plausible that the 2nd Circuit will follow the doctrine constitutional avoidance as well.

I hope it doesn’t. It would be so right for Louis Vuitton – perhaps the most relentless trademark protector in the U.S. court system – to be in the middle of a constitutional challenge to one of its most potent weapons. I’m sure Louis Vuitton would see no humor in the possibility that its own aggressiveness could backfire. But I suspect some defendants might.

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Latest Obsession: Louis Vuitton Perforated SC Bag PM

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LOUIS VUITTON BROMPTON BAG

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The Louis Vuitton Brompton Bag is another beautiful addition to the dashing Damier range. With its strong and modern lines and polished detailing, this one is an ideal companion for the woman who is always on the go.

The Damier Ebene canvas looks gorgeous on the newest Brompton Bag. This Louis Vuitton beauty also knows flexibility and multi-functionality with its 2 toron handles, which serves it best as a handbag and the removable shoulder strap perfect for wearing it as a shoulder bag.

Now off we go to the bag details, which we know you’re all excited about. Especially the interior is where you should pay attention to – it features 1 double smartphone pocket, 1 interior zipped pocket, 1 frontal long zipped pocket, 1 leather patch on the front and also a padlock as well as a keybell.

The top opens and closes with a double zipper and you can carry this bag by hand as well as a removable strap for shoulder carry.

Measuring 13.4’ x 13.4’ x 5.5’ (L x H x W) inches and is priced $2410 USD, 1780 euro, 1490 GBP, $20500 HKD, $2890 AUD via Louis Vuitton boutique or e-store.

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Louis Vuitton Bag

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The Louis Vuitton Pallas BB Bag that we’ve introduced last week, do not need to explain its existence, one simple look or touch (even better) is enough to make any bag-addict fall in love.

And the Pallas BB Bag is also a classic; it’s combined with monogram canvas and natural cowhide, leaving on the top a ‘touch of color’. Everything you need is there, a shoulder strap, gorgeous beige handles, two-way zipper and refined with golden hardware. It’s truly breath-taking.

If you are not able to purchase the Louis Vuitton Pallas BB Bag for whatever reason, perhaps the newest Louis Vuitton Pallas Chain Bag will trigger your shopping-spree-button. You see, it’s a chain strap to carry on your shoulder or even cross-body, it’s an unique design of monogram canvas matched with supple calf leather and elegant pleats. It helps you to go from day to night with glam effortless. Get noticed by the gorgeous golden S-lock closure.

Go into the tiny details – the golden eyelets are engraved with Louis Vuitton, there is decorative golden rivets signature on the back, the interior is made with 2 compartments that fits even a zippy wallet and a zipped pocket. You will also find a front compartment on the exterior.

Available in four different colors, measuring 10.2’ x 6.7’ x 2.4’ (W x H x D) inches.

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You’ve probably already heard of the Louis Vuitton Portobello Bag, but because of its fame, we want to write a review about it.  A perfect bag for the day out or the night out, you can just sling it over your shoulder or take it by hand. With its generous space, your everyday essentials can be stored and protected, it can carry even your sweater if you pick the GM size. The leather is extra supple and the Damier Ebene is so classic. Talking about Damier Ebene, the usual lining in the interior is red, but the Portobello Bag got a special treatment with chocolate brown lining, which is both beautiful and it doesn’t stain. From experience, this bag fits comfortably over your shoulder or on your arm, it comes with an interior zipped pocket, an interior double flat pocket and there’s engraved golden hooks securing the handle and brass plates for the stylish look. With its material as durable as diamonds, you can be sure that this investment will last forever. 

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LOUIS VUITTON SPONTINI BAG

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If you could just have one luxurious and richly elegant feminine bag in your wardrobe, make sure that it’s the Louis Vuitton Spontini Bag. Bringing its A game to the urban fashion scene, Louis Vuitton did a great job with this leather wonder.

Sporty, ultra feminine, and particularly crafted for the urban lifestyle, the Spontini is the perfect go-to casual chic bag. With its body-friendly embossed leather, sophisticated details and its lightweight, this one is definitely fated to become a House classic.

Let’s move on to the bag details. Aside from its embossed supple cowhide leather, it also has a flat handle for shoulder carry and a removable non-adjustable strap for cross-body carry. Talk about multi-functionality. It also has golden metallic pieces, secure lock, and a key bell.

If you’re concerned about storage, fear not for this bag has a lot of pockets to hold your valuables. It has an inside zipped pocket, 2 inside flat pockets, and an outside zipped pocket with double zippered closing system.

It measures 34 x 30 x 10 (L x H x W) cm and comes in three colors: Cherry, Mastic and Noir. Check out the boutique for more colors. 

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LOUIS VUITTON VICTOIRE BAG

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A new Louis Vuitton leather creation inspired by the trunk bag, this is the Victoire Bag which looks elegant, classy and regal all rolled into one. For those who would like to sport a classy vintage look, then the Victoire Bag is just perfect to complement your glam retro look.

A new day-to-evening bag made from Monogram canvas paired with calfskin, this is a statement piece that is truly unique of Louis Vuitton. The clasp and sliding chain in glimmering metal reinterpret the classic House designs in a stylish modern mode.

It comes in three beautiful colors! Ladies you can choose from Raisin, Cherry, and Noir. Let us know about which one you picked!

Made from Monogram coated canvas with colorful calfskin, with microfiber lining, gold-colour metallic pieces, long sliding chain, and clasp closure, one would definitely feel like a million dollar worth by carrying this bag over your shoulders.

For compartments concern, this bag has a front pocket and a central zipped compartment to organize your essentials. Measuring 26 x 47 x 10 (L x H x W) cm

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