Complex magazine reached out to Barbara Kruger to see what she thought of the whole Supreme v. Leah McSweeney lawsuit over the “Supreme Bitch” design. Here’s what she said – it’s brilliant.

Earlier today I read online that Supreme is suing Leah McSweeney and MOB parent company LCM Productions for $10 million for the use of the “Supreme Bitch” design.  As I read on to learn more about the situation I had so many different thoughts running through my head that I figured I would give you all my two cents.

Some of you may know that I am an attorney thought I am no longer practicing.  I haven’t done a full legal analysis of the situation but having read many of the comments on other blogs it’s clear that legal issues are complex and what may seem obvious is not so clear cut.

The controversy is surrounding the “Supreme Bitch” design originally created in 2004 as one of the t-shirt designs in the first Married to the Mob collection.  Here it is in case you’re not familiar:

Back then, the “Supreme Bitch” MOB t-shirt was sold at UNION, a store owned co-owned by Supreme founder James Jebbia, presumably with his blessing.  Fast forward nine years and “Supreme Bitch” is the primary graphic the company is selling with the slogan emblazoned on everything from t-shirts, hats, mugs, towels and mouse pads.  In January of this year, McSweeney filed a trademark application for “Supreme Bitch”.

Jebbia has stated: “[McSweeney is] trying to build her whole brand by piggybacking off Supreme…I thought it was just going to be a one-off. Now it’s on hats, T-shirts, towels, mugs, mouse pads.” (NY Mag)

Leah has released her own statement:

You can download a copy of her Answer and Counterclaim that and read it for yourself.

So the nerd in me is geeking out on the legal issues in this case – and former women’s streetwear designer in me has a few thoughts which I’ll save for the another day.

Streetwear and the Art of the Knockoff

Knocking off logos is a hallmark of streetwear.  Every streetwear line has done it.  SUPREME does it.  In fact Supreme’s logo itself is a bit of a knockoff! So why is Supreme suing?

• The Supreme Logo – The Supreme Logo is inspired by Barbara Kruger’s artwork – see below for an example of one of her works.  It’s clear that the Supreme logo is completely based on her work and according to the Answer and Counterclaim James Jebbia has acknowledged this.

• Supreme Graphics – Anyone familiar with the Supreme brand knows that most of their collections feature a knockoff of a well-known brand.  They’ve done graphics inspired by everything from The New Yorker‘s mascot, Eustace Tilly and the L.A. Kings. (NY Mag)

So, in light of this, how can Supreme have the nerve to sue? 
Regarding the Supreme logo, I was reading through one of the comments on Hypebeast and a self-proclaimed Barbara Kruger fan commented that “she has acknowledged the Supreme logo (I know this being a HUGE fan o[f] Kruger)”.  I tried to verify this but have not found any legitimate source for that statement.  We do know that she has never made a claim against them so you may interpret her silence as consent.

Regarding the graphics, in some cases Jebbia has received cease and desist letters and in some instances he’s had to pay up.  He stated “We’ve been wrong, but we deal with it and make it right.”(NY Mag).  But there seems to be an understanding – at least among streetwear brands – that you can knock a brand off – it’s almost expected.

Here’s the difference.

1.  When McSweeney was just using “Supreme Bitch” as a graphic there didn’t seem to be a problem.  It’s when she filed a Trademark Application that Jebbia took action.  Filing a Trademark Application is tantamount to McSweeney saying she wants to use “Supreme Bitch” as a logo.  She wanted to make it more than a graphic – and make it a mark used to identify her brand.  Knocking-off a brand in good fun is one thing, knocking-off another brand’s logo to use as your own is an entirely different matter.

2.  When streetwear brands knockoff other brands they are usually luxury brands (Hermés), Mass Market brands (Tide), or a sports franchise (Mets) .  Streetwear brands don’t knockoff other streetwear brands (at least not blatantly and intentionally).  It’s a subtle difference but a difference nonetheless.  It’s kind of like not shitting where you eat.

Proving Trademark Infringement

Proving trademark infringement is not easy, and I’m over simplifying things here but the hallmark of trademark infringement is “likelihood of customer confusion”.  Basically, the aim is not to cause confusion in the marketplace.   Supreme can’t prevent any company with Supreme in the name from getting a trademark.  Usually if the company is in the same field or industry then it’s a problem.  For example, if in this case “Supreme Bitch” was not for apparel (and not based on the same design as the Supreme logo) but was instead for a line of dog food then the likelihood of customer confusion would probably be small and the application would be approved.

In this case, based only on comments on other blogs there appears to be some actual confusion – some consumers thought that the “Supreme Bitch” design was a collaboration between Supreme and MOB.  Supreme will have to show more than just confusion from blog comments but where the logo is identical, and sold in the same market (apparel), they may have a good shot here.

Parody and the First Amendment

McSweeney uses the right to parody under the First Amendment as a defense to any alleged trademark infringement.  In her Answer and Counterclaim she states: “the SUPREME BITCH Legend originated as a criticism and parody of the male-dominated and often-misogynistic skate culture and Supreme brand.”

The First Amendment is some serious business in the U.S.  There are very few times when you can get around the First Amendment.  Parody is an important part of the First Amendment speech as it allows criticism which is essential for free speech.  When it comes to using parody and the First Amendment as a defense to trademark infringement, courts have gone in different directions.  However, “courts appear to be more sympathetic to the extent that parodies are less commercial, and less sympathetic to the extent that parodies involve commercial use of the mark.”  (Harvard Cyber Law).

In this case, though McSweeney can establish parody, I’m not sure the First Amendment will protect her because she is using the mark commercially be selling it on product, and effectively wanting to use it as a logo.

So there you go, I don’t have the answer, but I at least tried to shed some light on what’s going on.  People can get very emotional when you mention a law suit so a lot of what you read online are purely visceral reactions.

It’s also worth noting that most civil cases don’t go to trial and settle out of court.  I’d be very surprised if this case actually made it to trial.

Stay tuned for Part II where I give you my two cents as a women’s streetwear designer.

Incase’s Spring 2013 Stripes Collection

Stripes, are like, so hot right now.  Designers like Vivienne Westwood, Johnathan Saunders, and Dolce and Gabanna are all utilizing horizontal and vertical lines both thick and thin in their Spring collections.  Betsy Ross, perhaps foreshadowing a trend that would occur hundreds of years after her time, used stripes in the design of the American flag.   Now Apple accessory makers Incase are getting in on the act, releasing a collection of iPhone cases and Macbook sleeves adorned with a hypnotic, striped pattern.

Incase’s Stripes Collection also features these sleeves for your MacBook of choice

The Stripes Snap Cases for iPhone 4/4s/5 feature lightweight, minimalist protection utilizing either a horizontal or chevron stripe pattern. They’re hard, durable, and protect the iPhone’s sides, back, and corners.  Meanwhile, the The Canvas Stripe Sleeve for MacBook Airs and MacBook Pros features a durable, canvas construction with a horizontal stripe pattern.  The inside is cushioned and lined with faux-fur, ensuring your MacBook is protected while it rests comfortably inside.

The collection is now available through the Incase online store.

I’m a sucker for large tote bags – mainly because I’m the type of person that carries my life around with me – I need to be prepared for everything! Now, with summer coming and picnics and trips to the beach that require all different kinds of paraphernalia I’ve been keeping my out for the perfect summer tote. Thankfully, the ladies of Dimepiece read my mind and came out with three large utility totes. They have a clean, simple design and come in three awesome prints: camouflage, leopard and snake skin. The Dimepiece utility totes retail for $92 and you can get them on the Dimepiece online shop.

A few weeks ago we heard Tricky’s Nothing’s Changed and now we have a new track from Tricky also with vocals from Francesca Belmonte.

Download Tribal Drums – the second free track from Tricky’s upcoming album False Idols by going to Tricky’s Facebook Page.

Kate Nash released her third album Girl Talk back in March and she’s had two tracks – one of them which dropped just a few days ago. There’s something about her – her sound, her look – that reminds me of my college days. I could see her music blasting on college campuses and indie rock stations. It’s like playful, mellow riot grrrl for a new millennium.