It’s in the Bag for Warner Brothers

By: Claire Little *

Bicycle playing cardsWhen the world feasted its eyes on The Hangover Part II last year, it was obvious that the Warner Brothers’ sequel lived up to the hilarity and awkwardness of The Hangover original. Not only were the “Wolfpack” reunited, but their bags were packed, and they were ready for a party. None were more ready than Alan Garner, whose knockoff Louis Vuitton luggage is the focus of one of the film’s many references to his social deficiencies. Unfortunately for Warner Brothers, Alan’s knockoff luggage created problems for the movie-maker long after audiences left the theaters.

In the film, Alan arrives at the airport with his fellow leading men with a luggage cart full of what appears to be Louis Vuitton luggage; however, the luggage set is in fact made by Diophy, a company known for creating knockoffs of the premier luxury brand. As the scene continues, Alan sits on a bench with one of his knockoff Louis Vuitton bags placed next him in an empty seat. Stu tosses the knockoff bag so his soon-to-be brother in law, Teddy, may sit. Scolding Stu for his treatment of the bag, Alan states: “Careful that is . . . a Lewis Vuitton.”

earlier pieces of luggageResponding to Warner Brothers’ joke, Louis Vuitton’s complaint, filed in December 2011, in the Southern District of New York, alleged that consumers viewing the movie believed Alan’s Diophy luggage was genuine Louis Vuitton and that Louis Vuitton consented to Warner Brothers’ misrepresentation of the Diophy bag as genuine Louis Vuitton. However, the Second District disagreed with Louis Vuitton’s concerns for public confusion.

In an opinion filed June 15, 2012, District Judge Andrew J. Carter determined that Alan’s knockoff Louis Vuitton luggage and mispronunciation of the Louis Vuitton brand—although quite funny—is not grounds for a trademark infringement case. The Court determined that under the Lanham Act, Louis Vuitton must show that Warner Brothers’ use of the Louis Vuitton mark is likely to cause an appreciable number of ordinary purchasers confusion as to the origin, sponsorship, or approval of Warner Brothers’ movie. The Lanham Act is inapplicable to artistic work (which is protected by the First Amendment and Copyright), so long as use of the mark is “artistically relevant” to the work and is not “explicitly misleading” as to the source or content of the work. Because Louis Vuitton did not claim that Warner Brothers sought to use its mark for commercially, Warner Brothers’ use of the mark is “place[d] . . . firmly within the purview of an ‘artistic work.’”

As to whether the use was “artistically relevant,” the Court found that Alan’s comment about his “Lewis Vuitton” “comes off as snobbish only because the public signifies Louis Vuitton . . . with luxury and a high society lifestyle, . . . as funny because he mispronounces the French ‘Louis’ like the English ‘Lewis,’ and ironic because [Alan] cannot correctly pronounce the brand name of one of his expensive possessions.” Together, the interplay of these aspects of Alan’s comment add to the image of Alan as “socially inept and comically misinformed” and introduces the “comedic tension” between Alan and the film’s other characters. Therefore, the use of knockoff Louis Vuitton luggage was “artistically relevant” to the film.

diceAfter determining that the use of the Louis Vuitton mark was artistically relevant, its use was only unprotected if found to be “explicitly misleading . . . in the sense that it induce[d] members of the public to believe [the film’s use of the Diophy] was prepared or otherwise authorized” by Louis Vuitton. The Court, however, concluded that “it is highly unlikely that an appreciable number of people watching the [f]ilm would even notice that Alan’s bag is knockoff” since the moviegoers cannot examine the craftsmanship of the bag. In fact, it was found that the difference between the knockoff bag and a genuine Louis Vuitton was so difficult to notice that “a claim of confusion under the Lanham Act [advanced by Louis Vuitton] was ‘simply not plausible.’” Thus, the Court concluded, before dismissing the case, that:

There is no likelihood of confusion that viewers would believe that the Diophy bag [was] a real Louis Vuitton just because a fictional character made this claim in the context of a fictional movie. Neither is there a likelihood of confusion that this statement would cause viewers to believe that Louis Vuitton approved of Warner Brothers’ use of the Diophy bag.”

By avoiding the costly damages Louis Vuitton was seeking in this case, perhaps next time Warner Brothers can afford for Alan to splurge on a genuine Louis Vuitton.

* Claire Little is a second year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in English and Philosophy from Virginia Tech. Upon graduation, Ms. Little plans to return to Virginia to pursue her career.