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Nasty Gal, Pretty Little Thing and Boohoo to put on their court shoes

Fashion retailers Boohoo, Nasty Gal and Pretty Little Thing (“PLT”) have been targeted with litigation by AirWair International Ltd (“AirWair”), the parent company of iconic English footwear brand Dr Martens. AirWair filed complaints in the US courts against the fast fashion brands alleging, amongst other things, trade mark infringement and unfair competition.

According to AirWair’s complaint, the fashion retailers have been copying its trade dress registrations for the Dr Martens brand since as early 2016. AirWair alleges infringement of Dr Martens’ 1460 Vonda and Jadon boots, as well as the Polley Mary Jane shoe.

Trade dress protects the total image or overall appearance of a good or service, for example, a product’s packaging, or the design of a product. Trade dress can be protected through common law rights or can be registered as a trade mark under the US Lanham Act. The UK’s equivalent to trade dress is the common law right of passing off, which can protect unregistered trade marks as well as the get-up and appearance of the packaging of a product or service.

In its complaint, AirWair named four styles of allegedly infringing boots sold by both Boohoo and PLT and two styles sold by Nasty Gal, all of which are sold on their respective websites. AirWair claimed the infringing boots were confusingly similar to and unlawful copies of its Dr Martens boots.

The fashion retailers have, according to some reports, made clear that they have no intention of stopping the infringement and continue to reap the profits derived from making the allegedly infringing shoes and boots.

In addition to this PLT has allegedly breached, a confidential settlement agreement it entered in to with AirWair in which it formally agreed to cease infringing certain Dr Martens designs. Further, Boohoo and Nasty Gal have not responded to cease and desist letters sent by AirWair in 2017. In its complaint, AirWair argued all three fashion companies have “wilfully continued infringement to this day”.

AirWair has asked the federal court of Northern California to grant a permanent injunction against all three fashion retailers and requested monetary damages of up to $1,000,000 per separate infringement.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.