Aéropostale, the teen retailer, has taken on fast fashion giant, Hennes & Maurtiz, in a trademark infringement suit. Aeropostale is claiming that H&M has infringed on 87 trademarks, including “Live Love Dream.”
The teen retailer has alleged in its suit that “H&M engaged in a pattern of conduct involving the use of identical, or nearly identical marks on some of the same goods for which Aéropostale uses its marks, namely, clothing and tote bags.”
Aéropostale sent cease and desist letters to the Swedish retailer over a t-shirt and a bag with the words “Live Love Dream” and other pieces that the company claims infringe on other marks it holds. According to the suit, H&M responded by stating that Aéropostale would not be able to prove that their use of the phrase “creates any likelihood of confusion” and “is a fair use” under the First Amendment.
Aéropostale has had a tough time in the marketplace of late, as the company suffered a loss of $141.8 million on sales of $2.1 billion last year. And, one of the major areas of the brand is its Live Love Dream collection, which consists of sleepwear, activewear, yoga apparel and intimate apparel.
The crux of this case will be the determination of a likelihood of confusion, which is the test for trademark infringement. The court will ask if a consumer sees two pieces that bear the “Live Love Dream” phrase, will the consumer be confused about where the piece comes from? The answer will be based on evidence that each side will provide determining how strong Aéropostale’s use of the phrase is in connection with its brand awareness among consumers.
Aéropostale may argue that a major staple of the brand is their Live Love Dream collection, and that it has a Live Love Dream concept store at the Mall of America in Minnesota as well as in malls in Texas, Ohio and West Virginia. This could show that the retailer has established its brand with this phrase and that consumers associate the phrase with Aéropostale.
Because of the significant loss of sales and because the Live Love Dream collection is a staple of the brand, one of the reasons the retailer may have decided to pursue legal action, instead of quietly settling out of court. Suing a large, global retailer like H&M immediately gets people talking about the company, especially since intellectual property and fashion law is a very hot topic right now in the industry.
The retailer is also standing its ground and letting not only H&M but other retailers and the industry know that it will fight for its brand and not allow other, larger retailers to dilute its brand worth. If Aéropostale doesn’t fight for its intellectual property rights in this case, it would be unable to do so in the future if any other retailers or brands infringe on its copyright or trademark rights.
Aéropostale is seeking an injunction and unspecified damages. We shall see how H&M responds to the suit and how this will affect both retailers.
- “Aéropostale Sues Hennes & Mauritz“, Women’s Wear Daily
- “Aéropostale Sues H&M Over Trademarked Phrase“, Fashionista.com