Recently, Virgil Abloh received a complaint of a violation of copyright from OffWhite Co. at the federal court in New York City. This is not another Virgil genius idea and we are not talking about the brand founded by the current Louis Vuitton Creative Director, but of the creative agency based in New York specialized in consulting for brands in all sectors in the field of marketing, creativity and packaging.
Abloh and Off-White – with a hyphen – has been then sued by OffWhite – without a hyphen – on the accusation of having gone too close to the identity of the graphic agency born more than 15 years before the streetwear brand.
According to the statement, Virgil, once his brand had reached great fame, ended up obscuring the possibilities of OffWhite Co. to appear in search engines and on social networks. In particular, those with the hyphen are accused of having monopolized the use of the hashtag #OffWhite in unfair competition, to which the creative agency attributes great commercial importance as a means to advertise its products and spread its projects.
According to WWD reports, the American legal system and in particular the Lanham Act – the law that regulates trademark rights – would allow OffWhite Co. to receive cash compensation for damages, including the return of profits derived from the alleged violation. The task now is therefore to demonstrate this violation and whether it is actually unfair competition. OffWhite Productions claims to have had no alternative to legal proceedings after Off-White “in response to the first communications, refused to change its conduct in any way.”
According to OffWhite, Virgil has continued to play down the meaning of this confusion, proceeding almost spitefully to present a new design that incorporates the word ‘OFF’ in a graphic layout that is unmistakably similar to an (unregistered) logo used by OffWhite Productions. According to OffWhite Productions, the ability to use SEO practices has allowed the fashion brand to promote a violation of the term OffWhite, moving the URL offwhitedesign.com from Google’s main search results. In this way, image damage was caused but even more economical, in a similar way to what happened years ago with the Pyrex brand, founded by Virgil to become a victim of a legal fake phenomenon due to the lack of a real registration of intellectual property.
A problem to be clarified is precisely that of determining whether the two companies belong to the same economic sector. While the American copyright law allows brands operating in areas far from each other to adopt the same name, OffWhite Co. would have all the legitimacy to get to the bottom of the issue because Virgil Abloh in 2012 registered his brand in the same category of brands and service providers where the creative agency has been registered since the 1990s. This makes them to all effects, at least according to the law, a competitor.
It is easy to understand that this story is much less determined than it appears in the eyes of the law, the two companies do not dialogue in the same market segments and we must take into account the very rapid success achieved by Off-White LLC, more recognized on social media compared to OffWhite Co. If these parties actually operated in the same sector and were sold to the same consumers, this case would be much easier to solve. The U.S. Patent and Trademark Office and various courts in these cases consider that the more similar the brands themselves, the less similar products or services must share the same market to support an assessment of the likelihood of confusion. This bodes well OffWhite Co.
The law will have to express itself, however, the ethical issue remains, above all if we consider all the accusations of plagiarism already addressed to the designer, on which we had already reported some time ago. Virgil Abloh is not new to attacks of this kind, such as those addressed to logos or other identifying elements of the Off-White collections, like the quotation marks or the zip tie, of dubious paternity and therefore also difficult to protect.
Virgil represents the greatest example of that generation of creatives that has managed to emerge and to elevate a product from streetstyle to high fashion only thanks to a more decisive appropriation of social tools. Therefore, in a context in which the overlap of images administered in repetition determines the success of a character or a product, how can Virgil be held guilty of having obscured the visibility of OffWhite Co. only for having exploited a medium to its fullest potential? Is it right to ask a few questions about the actual artistic consistency of the Rockford stylist, DJ and architect and his unfair way of competing in the market or are they only blaming him for his greater communicative brilliance?