Burch v. Burch - Fordham Intellectual Property, Media & Entertainment Law Journal
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Burch v. Burch

Burch v. Burch

Can the essence of a brand be knocked off? Chris Burch, the ex-husband of fashion designer Tory Burch, seems to have done so.  His chain of C. Wonder stores appear to mimic both the specific products and the essence of Tory Burch’s eponymous brand.

Tory Robinson, who worked in fashion P.R. in New York City, married venture capitalist Christopher Burch in 1997. The couple built the successful fashion label Tory Burch with a $2 million investment from Chris, known for its “T” logo medallion and its “preppy boho” aesthetic.  The couple divorced in 2006, but Chris remains a major shareholder in the company and even sits on the board.  Then, in 2011, while still on the board of Tory’s company, Chris opened his own chain of allegedly lookalike stores called C. Wonder, which Vanity Fair refers to as a “Tory-esque line of shops.”  Both parties still own a 28.3% stake of the Tory Burch brand, which has 82 stores worldwide and a very successful e-commerce business. Chris claims that the company would not be what it is without him, as he provided invaluable monetary contributions, inside contacts, and business savvy, but as Anna Wintour has stated in a Vanity Fair article about the couple and their ongoing lawsuit, “it’s always been…100 percent Tory’s business, and we’ve never had anything to do with Chris.” Tory Burch believes that she provided the entire vision and design behind her company.

There are many similarities between the Tory Burch and C. Wonder brands, from the specific products (such as the Tory Burch Fox Stud Double Wrap Bracelet and the C. Wonder Fox Head Enamel Bracelet) to the essence of the stores themselves (for instance, both have lacquered doors, Tory Burch’s orange and C. Wonder’s green, and tufted ottomans), as well as the overall “American preppy-remix” vibe. The same team that had worked with Tory to create the now-famous “T” logo for her brand had even designed the “C” for C. Wonder. The Tory Burch brand is known for high fashion at mid-point pricing. C. Wonder, on the other hand, sells similar products at around an 80% markdown. Chris is known for his obsession with sourcing and manufacturing products cheaply in China and getting the best deal. What resulted was, in Tory’s opinion, a “low-end emporium featuring some cheaper materials and less sophisticated design” of Tory Burch originals.

There were rumors in early 2012 that Tory planned to sue Chris for what she considered was creating a knockoff brand.

However, it was Chris that sued Tory for breach of contract and tortuous interference, seeking to protect himself from what he sees as Tory and fellow board members of Tory Burch interfering with his C. Wonder brand and his position on the board, including preventing him from selling his shares in the company. The complaint alleges that Tory Burch would not allow Chris to sell his shares in the company until a variety of issues regarding C. Wonder had been resolved, which, per a Vanity Fair article on the lawsuit, included “29 items and store interiors, including the ‘patterned wallpaper’ and ‘brass trim on fixtures.’” Tory Burch (the brand) disputes Chris Burch’s suit’s allegations that it interfered with his shares in the company, and plans to respond with its own suit to address the C. Wonder copycat issue. In its answer to Chris’s complaint, the Tory Burch company denies that C. Wonder is “a cutting edge brand” and accuses C. Wonder of being a mass-market “knock off brand” that stole trade secrets.

In court documents, Chris insists that he wants to sell his shares in Tory Burch and continue to run his businesses, ideally coexisting with his ex-wife’s brand.

Chris denies that his line is a knockoff of his ex-wife’s brand, but in an interview on CBS This Morning he does admit that they have the same aesthetic. In a Vanity Fair interview, Chris says that “C. Wonder is an experience[,] Tory Burch is an upscale womenswear destination.” His attorney, Andrew Rossman, has stated “I don’t believe that the Tory Burch company has a monopoly on ballet flats or cardigan sweaters or bright colors.” Rossman also argues that the different price points differentiate C. Wonder from Tory Burch, and that customers would not be confused by the two brands.

However, the dispute is over more than just similar bracelets and lacquered doors. Other fashion designers have noticed the striking similarities between the two brands.  Tamara Mellon, the co-founder of the shoe brand Jimmy Choo, says that Chris “plagiarized the DNA of the Tory Burch brand.” Diane von Furstenberg, a noted womenswear designer, says that Chris is hurting Tory’s business by “sabotaging it, by copying it.” From a legal standpoint, Douglas Hand, a fashion industry attorney at HBA L.L.P., notes that “[p]utting aside whether C. Wonder presents an actionable copy, it is a competitor at a lower price point with an owner who essentially has the same trade secrets as Tory Burch L.L.C.” However, this may not be enough to corroborate a trademark infringement claim.

This issue may be resolved in court sooner rather than later. The Delaware judge presiding over the case, Chancellor Leo Strine, made it clear that he wants this “preppy clothing dispute” resolved as soon as possible, downplaying it by noting that it is “not a case about intercontinental ballistic missiles.” As quoted in Businessweek, during the proceeding to schedule a trial date, Chancellor Stine proffered, “I think for both sides, it might come as news, you know, there’s really nothing all that new about bright clothing and all that kind of stuff…So, you know, no one—when Tory Burch became popular, no one said, “Oh, my gosh, this is the newest thing that ever happened.” He also warned Tory’s attorneys that “[n]o one who’s in any form of art, including if you call this art, can claim entire originality to anything.” As an industry outsider, Judge Stine’s stance on the copyright accusations may lean more in Chris and C. Wonder’s favor. The trial is scheduled for April 2013.

Reed Kristovich

Reed Kristovich is a second year Fordham Law student, and is a staffer on the IPLJ. Her interest in IP was sparked during her 1L Property Law class and grew as she worked on fashion and apparel cases at a law firm over the summer in 2012. When not in the law library, she enjoys reading, running, and traveling.